\ 

THE    UNWRITTEN    CONSTITUTION    OF 
THE   UNITED   STATES 


A  PHILOSOPHICAL  INQUIRY  INTO  THE 
FUNDAMENTALS  OF  AMERICAN  CON- 
STITUTIONAL LAW 


BY 


CHRISTOPHER  G.  TIEpEMAN,  A.M.,  LL.B. 

PROFESSOR   OF    LAW   IN   THE  UNIVERSITY   OF   MISSOURI 

AUTHOR  OF  TREATISES   ON   "  THK    LIMITATIONS    OF    POLICE    POWER,"    4i  THE    LAW  OP 
REAL   PROPERTY,"  AND  "  LAW   OF   COMMERCIAL   PAPER  " 


G.  P.  PUTNAM'S  SONS 

NEW   YORK  LONDON 

aj  WEST  TWENTY-THIRD  ST.        27  KING  WILLIAM  ST.,  STRAND 

ftfce  flnukttbotkcr  |)xtss 
1890 


i 


COPYRIGHT,  1890 
BY 

CHRISTOPHER  G.  TIEDEMAN 


Ube  Tknfcftcrbocficr  press,  •new  r?orft 

Electrotyped,  Printed,  and  Bound  by 
G.  P.  Putnam's  Sons 


CONTENTS 


CHAP.  I. — ORIGIN  AND  DEVELOPMENT  OF  MUNI- 
CIPAL LAW  IN  GENERAL  ....  I 

CHAP.  II. — THE  ORIGIN  AND  DEVELOPMENT  OF 

CONSTITUTIONAL  LAW  l6 

CHAP.  III. — THE   ELECTORAL   COLLEGE    ...         46 

CHAP.  IV. — THE  RE-ELIGIBILITY  OF  THE  PRESI- 
DENT .  .  .  .  .  .  .  -SI 

CHAP.  V. — THE  INVIOLABILITY  OF  CORPORATE 

CHARTERS  AND  CHARTER  RIGHTS  .  .  54 

CHAP.  VI. — THE  DOCTRINE  OF  NATURAL  RIGHTS  IN 

AMERICAN  CONSTITUTIONAL  LAW  .  67 

CHAP.  VII. — THE  CONSTITUTION  IN  THE  WAR  OF 

SECESSION 83 

CHAP.  VIII. — CITIZENSHIP  IN  THE  UNITED  STATES       91 

CHAP.  IX. — STATE  SOVEREIGNTY  AND  RIGHT  OF 

SECESSION 1 10 

CHAP.  X. — THE  UNITED  STATES  GOVERNMENT 

ONE  OF  ENUMERATED  POWERS  .  .  ."129 

x^X  ^^ 

CHAP.  XI. CARDINAL    RULE    OF   INTERPRETATION 

AND  CONSTRUCTION  OF  WRITTEN  CONSTITU- 
TIONS      145 

CHAP.  XII. — THE  REAL  VALUE  OF  WRITTEN  CON- 
STITUTIONS   155 

iii 


THE    UNWRITTEN    CONSTITUTION 
OF  THE  UNITED  STATES. 


CHAPTER  I. 

ORIGIN   AND   DEVELOPMENT  OF   MUNICIPAL  LAW  IN 
GENERAL. 

BLACKSTONE'S  definition  of  law  has  been  gen- 
erally accepted  as  in  the  main  reliable,  not  only 
popularly,  but  also  professionally.  Indeed,  the  sci- 
entific element  of  the  definition,  viz. :  that  municipal 
law  is  "  a  rule  of  conduct  prescribed  by  the  supreme 
power  of  the  state"  has  been  so  earnestly  accentuated 
and  elaborated  by  the  master-minds  who  have  truly 
dominated  legal  thought  in  England  and  in  this 
country  for  the  past  half  century — I  refer,  of  course, 
to  Bentham  and  Austin, — that  the  professional,  as 
well  as  the  popular,  mind  has  been  led  into  the 
adoption,  as  an  axiomatic  truth,  of  a  most  serious 
error  concerning  the  origin  and  development  of  mu- 
nicipal law. 


2        THE  UNWRITTEN  CONSTITUTION. 

Except  in  the  matter  of  form,  the  statement  that 
municipal  law  is  "  prescribed  by  the  supreme  power 
of  the  state  "  is  false  and  misleading,  unless  by  the 
"  supreme  power  of  the  state  "  is  meant  the  aggre- 
gation of  all  the  social  forces,  both  material  and 
spiritual,  which  go  to  make  up  our  civilization.  But 
the  meaning  commonly  attached  to  the  words  "  the 
supreme  power  of  the  state  "  is  that  of  the  supreme 
power  in  the  government,  as  distinguished  from  the 
people  who  compose  the  body  politic.  Austin  and 
his  followers  admit  that  the  law-making  power  is  sub- 
ject to  moral  and  physical  restraints,  and  that  these 
restraints  co-operate  very  largely  in  forming  and  modi- 
fying the  substantive  law ;  but  since  no  rule  can  be 
called  a  lav,  which  is  not  enforced  by  a  sanction, 
prescribed  by  the  law-making  power,  the  moral  in- 
fluences at  work  upon  society  cannot  be  said  to 
create  law.  And  even  where  a  rule  of  law  is  for  the 
first  time  enunciated  by  an  English  or  American 
court,  Austin  claims  that  it  first  became  a  law 
when  the  court  announced  its  decision.  I  do  not 
suppose  Austin  intended  to  assert  that  the  de- 
cision of  the  court  was  purely  arbitrary ;  that  it 
only  reflected  the  sentiments  of  the  occupants  of  the 
judicial  bench.  I  cannot  believe  that  he  was  uncon- 
scious of  the  natural  sequential  development  of  the 
law,  operated  upon  by  all  the  social  forces,  out  of 
which  civilization  is  in  general  evolved.  But  the 


MUNICIPAL  LAW  IN  GENERAL.  3 

reader  of  his  work  on  jurisprudence  will  have  no 
very  clear  conception  of  this  scientific  development 
if  he  has  not  obtained  the  idea  elsewhere.  The  rigid 
logic  of  Austin  is  inclined  to  fasten  upon  the  reader 
the  more  or  less  popular  superstition  concerning  the 
omnipotence  of  the  law-making  power.  . 

Undoubtedly  there  is  no  living  law  without  a  * 
sanction  or  penalty,  and  there  must  be  somewhere 
some  one  who  has  the  power  to  inflict  the  penalty. 
The  law  is  intended  to  force  upon  a  rebellious  mi- 
nority the  observance  of  those  rules  of  conduct  the 
infractions  of  which  will  inflict  injury  upon  others. 
Physical  force  is  of  course  needed.  Hence  the  blind- 
folded Goddess  of  Justice  not  only  holds  up  in  her 
left  hand  the  scales  with  which  she  can  impartially 
mete  out  justice  between  parties  litigant,  but  she  also 
bears  in  her  strong  right  hand  the  sword,  which  she 
must  wield  with  effect,  in  order  to  enforce  her  de- 1 
crees.  If  a  decree  of  the  court  is  to  be  enforced,  the 
sheriff,  who  is  the  local  representative  of  the  execu- 
tive department  of  the  government,  summons  his 
posse  comitatus,  i.e.,  he  calls  upon  the  good  and  law- 
abiding  citizens  of  the  county  to  support  him,  and 
none  can  lawfully  refuse  to  obey  the  call. 

But  granting  that  to  make  a  rule  of  conduct  a  laW| 
a  penalty  must  be  attached  and  imposed  for  its  in-' 
fraction,  it  does  not  necessarily  follow  that  that 
penalty  must  be  enforced  by  an  organized  govern- 


4        THE  UNWRITTEN  CONSTITUTION. 

ment,  or  that  its  enforcement  by  such  a  government 
essentially  changes  the  character  of  the  rule.  When 
the  English  colonists  first  made  their  settlement  in 
this  country,  we  are  told  they  brought  with  them 
[the  English  common-law,  and  enforced  it  among 
themselves,  so  far  as  that  law  was  compatible  with 
the  surrounding  circumstances.  If  one  of  the  colo- 
nists had  made  an  attack  upon  the  person  or  prop- 
erty of  another,  before  there  had  been  any  organized 
government,  armed  with  the  power  to  enforce  the 
law,  would  the  Austin  school  of  jurists  claim  that 
these  colonists  were  without  law,  and  hence  this 
reprehensible  deed  was  not  illegal  ?  Would  they 
claim  that  there  was  no  law  on  the  borders  of  Ameri- 
can civilization,  where  the  only  government  is  the 
vigilance  committee,  and  where  the  only  court  of 
justice  is  presided  over  by  Judge  Lynch  ?  If  a  man 
is  murdered  or  a  horse  stolen  in  such  a  community, 
and  the  offender  is  captured  by  the  vigilance  com- 
mittee, tried  by  Judge  Lynch,  and  punished  in 
accordance  with  the  custom  of  the  country,  he  has 
suffered  the  penalty  of  the  law,  as  much  as  the 
criminal  in  an  orderly,  more  civilized  community, 
who  is  tried  and  condemned  by  a  regularly  organized 
court,  and  punished  by  the  ordinary  administrative 
officers  of  the  government.  The  only  difference 
between  the  two  cases  is  the  degree  of  development 
in  the  administration  of  the  law.  Lynch-law,  in  a 


MUNICIPAL  LAW  IN  GENERAL.  5 

community  not  possessed  of  a  properly  organized 
government,  is  as  much  law  as  the  enactment  of  an 
American  legislature  or  the  acts  of  Parliament.  Nor 
is  there  any  greater  difference  in  the  character  of  the 
forces  which  in  their  operations  upon  the  social  life 
command  the  formulation  and  enforcement  of  the 
rules  of  conduct  in  the  two  cases.  In  both  cases  the 
average  common-sense  of  propriety,  which  is  uni- 
formly obeyed  by  the  vast  majority  of  a  people, 
constitutes  in  the  main  the  standard  after  which 
rules  of  law  are  modelled.  The  morality  commonly 
and  uniformly  practised  by  the  masses  lends  its 
character  to  the  rule  of  law  when  it  is  first  enunci- 
ated. And  even  when  the  rule  is  first  promulgated, 
its  ethical  character  is  much  lower  than  the  standard 
of  morality  set  up  by  ethical  teachers  ;  for  only  that 
code  of  morality  can  be  enforced  against  delinquents 
which  the  people  generally  obey.  For  if  it  were 
attempted  to  enforce  a  higher  standard,  for  example, 
to  compel  every  one  to  do  unto  others  as  he  would 
have  them  do  unto  him,  the  sanction  would  be  want- 
ing, for  no  penalty  is  effective  unless  it  is  backed  by 
the  posse  comitatus. 

Municipal  law  is  not  intended  to  control  the  ac-/ 
tions  of  the  masses.     The  great  majority  of  a  people/ 
are  a  law  unto  themselves.     And  wherever  this  fun- 
damental thought  is  lost  sight  of,  legislation  results 
in  nothing  but  the  production  of  dead  letters,  still- 


6       THE  UNWRITTEN  CONSTITUTION. 

born  laws,  that  never  did  and  never  could  have 
become  a  living  rule  of  conduct.  For  the  life  of  a  rule 
of  law  is  derived  from  its  habitual  and  spontaneous 
observance  by  the  mass  of  the  people.  It  is  only 
when  its  enactment  is  called  for  by  a  popular  sense 
of  necessity,  in  order  to  compel  a  rebellious  minority 
to  conform  to  the  moral  habits  and  customs  of  the 
people,  that  a  rule  of  conduct  can  become  a  living 
law.  Although  a  moment's  reflection  is  sufficient  to 
satisfy  one  of  the  correctness  of  this  position,  it  is 
surprising  what  false  notions  of  legislation  do  pre- 
vail, even  among  scientific  men.  The  tenets  of  a 
large  and  influential  school  of  economists  are  based, 
confessedly  or  otherwise,  upon  the  notion  that  the 
living  power  of  the  law  is  from  an  extra-human 
source ;  for  they  are  preaching  the  doctrine  daily 
that  the  ills  of  life,  which  they  admit  to  be  the  con- 
sequences of  sin  and  ignorance,  or,  in  other  words, 
of  the  frailties  of  human  nature,  may  be  cured  or,  at 
least,  lessened  by  legislation,  even  where  the  evil  is 
not  the  result  of  a  trespass.  And  the  call  is  often 
made  for  fresh  legislation,  as  a  means  of  raising  the 
standard  of  morality  of  the  people.  The.  stream  can 
never  rise  higher  than  its  source,  nor  can  it  be  ex- 
pected that  legal  rules,  which  are  but  a  reflection  of 
the  moral  habits  of  a  people,  can  effect  their  moral 
elevation  ;  least  of  all,  the  moral  elevation  of  a  people 
living  under  a  government  "  of  the  people,  for  the 


MUNICIPAL  LA  W  IN  GENERAL.  ^ 

people,  and  by  the  people."  One  may  just  as  well 
expect  by  taking  thought  to  add  one  cubit  unto  his 
stature,  as  by  legislative  declaration  to  add  one  cubit 
to  the  moral  stature  of  the  people. 

The  legal  rule  is,  therefore,  fashioned  after  the 
prevalent  sense  of  right.  The  Germans  call  it  Rechts- 
gefuehl. 

It  is  not  so  difficult  for  the  novice  to  admit  this 
doctrine  in  its  application  to  judicial  legislation,  or 
judge-made  law,  as  Bentham  contemptuously  calls  it ; 
but  it  is  more  difficult  to  believe  that  the  legislative 
will  is  bound  down  by  this  prevalent  sense  of  right  to 
a  fixed  line  of  conduct,  from  which  it  cannot  success- 
fully swerve.  I  do  not  mean  to  say  that  the  legisla- 
ture cannot  make  an  enactment,  which  does  not 
reflect  the  prevalent  sense  of  right ;  for  there  are  too 
many  deplorable  instances  of  such  misuse  of  power, 
to  admit  of  denial.1  But  I  do  assert  emphatically 
that  the  legislature  cannot  completely  enslave  the 
popular  will  by  an  enactment  not  endorsed  by  the 
prevalent  sense  of  right.  Popular  opinion,  for  pru- 
dential reasons,  requires  of  the  individual  obedience 
to  the  written  .word,  until  the  power  which  enacted 

1  The  expression  ' '  deplorable  misuse  of  power  "  is  used  in  this 
connection,  because  the  writer  is  convinced  that  the  multiplication  of 
laws  which  cannot  be  enforced  tends  to  lessen  the  popular  reverence 
or  respect  for  law,  and  habituates  the  people  to  the  repeated  viola- 
tion, not  only  of  those  laws  which  do  not  reflect  the  prevalent  sense 
of  right,  but  also  those  which  are  so  sanctioned. 


8       THE  UNWRITTEN  CONSTITUTION. 

it  can  be  induced  or  forced  to  repeal  it.  To  this  ex- 
tent can  the  legislative  will,  as  a  factor  in  the  making 
of  the  law,  influence  its  development  in  opposition 
'  to  the  popular  desire.  But  when  the  law  is  brought 
before  the  courts  for  enforcement,  its  practical 
operation  will  be  made  by  interpretation  and  con- 
struction to  conform  to  the  prevalent  sense  of  right, 
as  far  as  this  is  possible  without  nullifying  the 
letter  of  the  law.  It  frequently  happens  that  the 
effect  of  the  statute  will  in  this  manner  be  completely 
changed,  and  will,  as  it  is  enforced,  produce  an  en- 
tirely different  effect  from  what  had  been  intended. 
A  most  notable  example  is  the  English  Statute  of 
Uses.  This  statute  was  enacted  for  the  purpose  of 
abolishing  uses  entirely,  and  preventing  the  creation 
of  any  equitable  interest  in  lands,  separate  and  apart 
from  the  legal  title.  But  when  this  statute  was 
brought  before  the  courts,  it  met  with  the  most  de- 
termined opposition  from  the  bench  and  bar.  They 
reflected  the  prevalent  sense  of  right  in  the  middle 
English  classes,  and  gave  the  statute  a  strict  techni- 
cal construction,  thus  limiting  its  operation  to  such 
an  extent  that,  instead  of  being  abolished  by  the 
statute,  the  law  of  uses  became  all  the  more  firmly 
settled.  Upon  this  distorting,  technical  construction 
of  the  English  Statute  of  Uses  rests  the  entire  law 
of  modern  trusts,  except  so  far  as  there  have  been 
modifications  by  American  statutes.  Instances  of 
this  kind  may  be  multipled  indefinitely. 


MUNICIPAL  LAW  IN  GENERAL.  9 

It  may,  therefore,  be  laid  down  as  a  general'propo- 
sition  that  a  legal  rule  is  the  product  of  social  forces,  / 
reflecting  the  prevalent  sense  of  right.  It  is  another 
question,  what  is  the  relative  influence  of  individuals 
and  of  classes  in  moulding  this  popular  sense  of  right. 
The  state  of  the  public  mind  may  be  such  that  it 
maybe  sair  of  that  people,  quod  principi  placuit  habet 
legis  vigo-em;  and  even  in  the  land  of  democratic 
rule  and  of  universal  suffrage,  only  a  few  persons 
really  mould  and  fashion  public  opinion.  The  great 
body  of  private  law  is,  by  common  consent,  usually 
left  to  be  developed  by  the  legal  profession.  Still, 
in  every  country,  it  matters  not  how  or  by  whom  it 
is  created,  whatever  is  the  prevalent  sense  of  right  is 
the  norm  by  which  legal  rules  are  formulated. 

But  the  popular  sense  of  right  does  not  remain/ 
stationary.  In  its  growth  and  evolution  it  follows 
an  easily  recognized  law  of  development.  The  popu- 
lar sense  of  right  rises  with  the  increasing  enlighten- 
ment of  the  ethical  teachers.  Although  the  legal 
rule  reflects  the  popular  sense  of  right,  prevalent 
when  it  was  formulated,  it  may  not,  and  usually  does 
not,  conform  altogether  to  the  popular  sense  of  right 
in  its  later  stages  of  development,  and  very  frequently 
there  is  so  great  a  variance  between  them  as  to  cause 
serious  popular  dissatisfaction. 

Philosophical  enthusiasts  sometimes  claim  that  this 
variance  is  due  to  the  imperfect  formulation  of  the 
legal  rule,  and  that  but  for  this  imperfect  reflection 


io      THE  UNWRITTEN  CONSTITUTION. 

of  the  prevalent  sense  of  right  by  the  formulated 
rule  legal  rules  would  never  conflict  with  public 
sentiment  in  any  stage  of  its  development.  Be  this  as 
it  may,  there  is  such  a  variance  which  increases  with 
the  ethical  and  spiritual  development  of  the  people. 

A  very  good  example  of  this  variance  between  the  I 
existing  rule  of  law  and  the  popular  sense  of  right  is 
to  be  found  in  the  law  of  fraud.  The  existing  rules 
of  law  declare  that  a  transaction  is  not  tainted  by 
fraud  if  one  of  the  parties  is  induced  to  enter  into  it 
by  a  mistaken  appreciation  of  the  material  facts,  sim- 
ply because  the  other  party  knew  of  the  first  party's 
misapprehension  and  failed  to  give  him  the  desired 
information.  For  example,  if  A.  is  offering  to  buy 
an  article  of  value  from  B.,  and  believing  that  the 
article  is  worth  one  thousand  dollars,  being  led  to 
that  conclusion  by  the  belief  that  the  article  has 
merits  which  it  does  not  possess,  when  in  fact  it 
is  not  worth  more  than  five  hundred  dollars  ;  if  B. 
has  said  or  done  nothing  to  produce  that  wrong  im- 
pression, he  can  take  the  excessive  price,  without  be- 
ing guilty  of  legal  fraud,  although  he  knows  at  the 
time  that  the  value  of  the  subject-matter  of  the  sale 
has  been  greatly  over-estimated  by  A.  When  that 
rule  was  first  formulated,  I  have  no  doubt  that  trades- 
men and  others  habitually  practised  the  rule  of  tak- 
ing advantage  of  the  ignorance  pf  others,  whenever 
they  had  done  nothing  to  create  the  ignorance  or 


MUNICIPAL  LAW  IN  GENERAL.          n 

to  prevent  the  acquisition  of  the  necessary  knowl- 
edge ;  and  it  is,  without  doubt,  still  the  general  rule 
of  conduct  in  the  more  subtle  business  transactions 
of  the  day.  But  in  the  balder  and  more  transpa- 
rent cases  of  the  kind  described,  the  influence  of  the 
teaching  of  a  higher  morality  is  being  felt  so  as  to 
prevent  a  very  large  number,  if  not  a  majority,  of 
the  people  from  practising  upon  their  weaker  breth- 
ren what  is  certainly  a  moral,  if  not  a  legal,  fraud. 
This  deviation  of  a  large  part  of  the  people  from  the 
directions  of  the  existing  rule  of  law  is,  however,  not 
yet  strong  enough  to  require  any  material  modifica- 
tion of  it ;  but  it  is  sufficiently  strong  to  involve  in 
doubt  the  correctness  of  the  enunciated  rule.  The 
people  do  not  yet  spontaneously  and  habitually  fol- 
low the  higher  rule.  Whenever  this  radical  change  in 
the  habits  of  the  people  does  come  about,  then,  and 
not  till  then,  may  we  expect  the  legal  rule  to  con- 
form to  the  better  teaching  of  morality. 

So  far  nothing  has  been  said  to  accentuate  the  fact 
that  this  change  in  the  prevalent  sense  of  right  is  not 
the  quiet,  smooth,  uneventful  development,  which  is 
found  to  prevail  in  the  growth  of  a  language,  and 
which  is  claimed  by  the  jurists  of  the  Savigny-Puchta 
school  to  prevail  in  the  growth  of  a  system  of  juris- 
prudence. 

On  the  contrary,  the  history  of  the  law  demon- 
strates conclusively,  by  a  host  of  examples,  that 


12      THE  UNWRITTEN  CONSTITUTION. 

every  material  modification  of  an  existing  principle 
of  law,  as  well  as  every  new  principle  of  law,  is  never 
firmly  fixed  in  the  jurisprudence  of  a  country  except 
after  a  vigorous  contest  between  opposing  forces.1 

As  soon  as  a  legal  rule  has  been  formulated,  private 
interests  begin  to  be  built  up  in  reliance  upon  the 
application  of  this  formulated  rule  to  all  future  simi- 
lar cases.  Unless  there  were  some  fixity  and  certainty 
in  the  rules  of  law,  there  could  be  no  material  devel- 
opment, no  inducement  to  individual  activity.  These 
private  interests,  thus  developed,  are  concerned  in 
the  strict  enforcement  of  the  formulated  rule,  and  re- 
sist all  changes  in  word  or  in  spirit.  In  obedience  to 
this  popular  desire  for  fixity  and  certainty,  the  let- 
ter of  the  law,  as  formulated  by  the  courts,  receives 
by  popular  agreement  the  same  binding  authority,  as 
is  freely  conceded  to  the  statute.  The  rule  of  stare 
decisis  prevents  subsequent  courts  from  completely 
repealing  the  rule  of  law  previously  formulated,  even 
though,  on  account  of  a  change  in  popular  senti- 
ment, the  law  should  cease  to  reflect  the  prevalent 
sense  of  right.  If  by  means  of  fictional  construction 

1  "  Das  Ziel  des  Rechts  ist  der  Friede,  das  Mittel  dazu  der  Kampf. 
.  .  .  Das  Leben  des  Rechts  ist  Kampf,  ein  Kampf  der  Volker — 
der  Staatgewalt — der  Stande — der  Individuen.  Alles  Recht  in  der 
Welt  ist  erstritten  worden,  jeder  Rechtssatz,  der  da  gilt,  hat  erst 
denen,  die  sich  ihm  widersetzten,  abgerungen  werden  mussen,  und 
jedes  Recht,  das  Recht  eines  Volkes,  wie  das  eines  Einzelnen,  setzt 
die  stetige  Bereitschaft  zu  seiner  Behauptung  voraus." — v.  Ihering's 
Kampf  urn's  Recht,  I. 


MUNICIPAL  LAW  IN  GENERAL.          13 

the  letter  of  the  law  cannot  be  made  to  conform  to 
the  existing  sense  of  right,  and  the  variance  is  so 
great  as  to  cause  great  discomfort  or  arouse  the  dis- 
approbation of  the  people,  the  only  remedy  is  a 
change  by  legislative  enactment.  But  this  rule  of 
stare  decisis  is  absolutely  binding,  only  as  it  also  re- 
flects the  prevalent  sense  of  right.  Cases  have  fre- 
quently occurred  when  the  variance  between  the  law 
and  the  prevalent  sense  of  right  was  so  distressing 
that  the  courts  have  been  justified  by  public  senti- 
ment in  abrogating  an  established  rule.  In  such 
cases  the  judges  have  sought  refuge  under  the  fiction 
that  the  prior  decision  was  an  erroneous  statement 
of  the  pre-existing  law;  and  hence  in  every  law 
library  are  to  be  found  collections  of  "  overruled 
cases."  But  it  not  unfrequently  happens  that  even 
this  elastic  fiction  will  not  furnish  any  actual  justifi- 
cation for  the  abrogation  of  the  existing  rule  of  law ;  / 
and  yet  it  is  done  in  compliance  with  the  demand  of 
private  interest  or  the  popular  sense  of  justice.  Still 
the  case  must  be  an  urgent  one,  in  order  to  meet  with 
popular  approval.  As  a  general  rule,  public  senti- 
ment requires  a  rigid  adherence  to  the  rule  "  stare 
decisis." 

It  must  be  further  observed,  that  not  every  moral 
rule  commonly  practised  by  the  mass  of  people,  be- 
comes a  legal  rule,  obedience  to  which  is  enforced 
by  a  legal  sanction.  Unless  the  violation  of  the 


i4      THE  UNWRITTEN  CONSTITUTION. 

moral  rule  involves  some  injury  to  the  public  or 
to  other  persons,  there  is  never  any  public  demand 
for  its  enforcement  by  the  imposition  of  a  legal  pen- 
alty. Those  wrongful,  immoral  acts,  which  are  prop- 
erly called  crimes  or  trespasses  upon  the  interests  of  / 
others,  are  generally  regulated  by  law,  but,  except  so 
far  as  they  likewise  have  the  character  of  trespasses, 
vices  are  left  to  the  correction  of  the  moral  influence 
of  public  opinion.  The  world  is  moved  and  controlled 
by  two  fundamentally  different  forces,  moral  suasion 
and  physical  force.  While  different,  they  need  not  be 
antagonistic,  and  only  are  so  when  the  physical  force 
is  employed  to  attain  some  unrighteous  end.  These 
forces  are  supplementary  to  each  other,  and  one  can- 
not take  the  place  of  the  other.  The  effect  of  moral 
suasion  is  to  build  up  or  reform  the  character  of  the 
person  or  persons  intended  to  be  influenced.  Physi- 
cal force  can  only  be  used  successfully  to  suppress 
the  desire  and  intention  to  do  injury  to  others.  You 
cannot  expect  to  make  a  virtuous  man  out  of  a  crimi- 
nal by  sending  him  to  the  penitentiary  or  to  the 
whipping-post.  The  only  end  attained  by  such  I 
measures  is  the  prevention  of  future  crime  by  creat- 
ing the  fear  of  punishment.  Vice  therefore  cannot^ 
be  successfully  controlled  by  any  measures  of  force ; 
the  correction  must  be  left  to  the  moral  suasion  of 
the  church,  the  home,  and  the  social  circle.  But  j 
when  the  peace  and  good  order  of  society  are  threat- 


MUNICIPAL  LA  W  IN  GENERAL.          15 

ened  by  attacks  upon  the  personal  security,  personal 
liberty,  and  property  of  others  there  is  nothing  to  do 
but  to  repel  force  by  force.  Of  course  this  repressive 
force  can,  in  an  orderly  community,  be  employed 
only  by  the  government,  except  in  the  few  cases  of 
emergency  where  the  right  of  self-defence  is  conceded 
to  the  individual. 

I  believe  I  have  succeeded  in  showing  that  the 
same  social  forces  which  create  and  develop  the 
ethics  of  a  nation  create  and  develop  its  law ;  that 
the  substantive  law  is  essentially  nothing  more  than 
the  moral  rules,  commonly  and  habitually  obeyed  by 
the  masses,  whose  enforcement  by  the  courts  is  re- 
quired for  the  public  good,  while  ethics  are  the  rules 
of  morality  set  forth  by  our  moral  teachers,  as  their 
highest  conceptions  of  moral  development.  The 
morality  of  the  law  is  commonly  and  habitually  prac- 
tised by  the  people  ;  the  morality  of  ethics,  if  this 
expression  be  allowed  me,  is  an  idealistic  conception, 
something  to  be  striven  for,  and  more  and  more  ap- 
proximated, but  perhaps  never  to  be  fully  realized 
before  the  days  of  the  millennium. 


CHAPTER  II. 

THE    ORIGIN     AND     DEVELOPMENT     OF     CONSTITU- 
TIONAL LAW. 

THE  constitution  of  a  state  may  be  described 
as  the  definition  of  the  order  and  structure  of  the 
body  politic,  while  constitutional  law  consists  of 
those  fundamental  principles  and  rules  in  accord- 
ance with  which  the  government  is  constructed  and 
its  orderly  administration  is  conducted.  Constitu- 
tional law  may  be  described  as  the  anatomy  and 
physiology  of  the  body  politic. 

If  these  definitions  be  accepted  as  true,  the  con- 
clusion is  irresistible  that  the  fundamental  principles 
which  form  the  constitution  of  a  state  cannot  be 
created  by  any  governmental  or  popular  edict ;  they 
are  necessarily  found  imbedded  in  the  national  char- 
acter and  are  developed  in  accordance  with  the 
national  growth.  This  doctrine  is  admitted  in  its 
application  to  the  so-called  unwritten  constitutions, 
like  that  of  England,  whose  changes  are  effected  by 
ordinary  parliamentary  action,  and  which  cannot  be 
found  in  any  one  written  instrument,  but  whose  prin- 

16 


CONSTITUTIONAL  LAW.  17 

ciples  are  to  be  found  scattered  along  the  pathway  of 
the  nation's  history,  and  serving  more  or  less  as  land- 
marks to  indicate  its  political  growth.  The  English 
Constitution  is  to  be  found  in  the  Magna  Chart  a,  the 
Petition  of  Right,  the  Habeas  Corpus  act,  and  the 
Bill  of  Rights.  It  is  plain  to  the  most  superficial 
observer  that  the  English  Constitution  was  not  the 
conscious  and  voluntary  creation  of  the  English  peo- 
ple ;  that  it  was  an  evolution  from  the  simple  politi- 
cal principles  and  formulae  of  the  Teutonic  race, 
finding  its  beginning  in  the  tribal  government  of  the 
German  barbarians,  so  graphically  described  by  Taci- 
tus. But  when,  the  so-called  written  constitutions  of 
America  and  Europe,  which  are  promulgated  by  the 
supreme  power  of  the  respective  countries  in  the 
form  of  a  single  instrument,  and  which  become 
operative  from  the  time  of  their  publication,  come 
under  consideration,  the  impulse  of  all,  and  the  con- 
viction of  the  many,  ascribe  to  them  a  very  different 
origin.  Even  one  of  the  most  distinguished  states- 
men, if  not  the  most  distinguished  statesman,  of 
modern  times,  Mr.  Gladstone,  falls  into  the  grave 
error  of  claiming  for  these  two  kinds  of  constitutions 
a  different  origin  and  a  different  rule  of  develop- 
ment, when  he  says  that  "just  as  the  British  Consti- 
tution is  the  most  subtle  organism  which  has  pro 
ceeded  from  progressive  history,  so  the  Americar 
Constitution  is  the  most  wonderful  work  ever  struck 


i8      THE  UNWRITTEN  CONSTITUTION. 

off  at  a  given  time  by  the  brain  and  purpose  of 
man."  It  is  very  true  that  the  attempts  to  create 
constitutions  off-hand,  and  to  establish  them  over  a 
people  to  whom  the  fundamental  principles  of  the 
proposed  constitutions  are  an  unknown  tongue,  have 
been  frequent ;  but  it  will  be  impossible  to  point  out 
a  single  instance  where  such  a  constitution  became  a 
permanent  and  living  rule  of  conduct.  Constitutions  \ 
are  effective  only  so  far  as  their  principles  have  their  \ 
roots  imbedded  in  the  national  character,  and  conse- 
quently constitute  a  faithful  reflection  of  the  na- 
tional will.  The  Japanese  nation  has  lately  adopted 
a  written  constitution,  after  a  study  of  the  various 
constitutional  governments  of  Europe  and  America ; 
very  many  principles  of  the  constitutions  of  the  Ger-  - 
man  and  English  empires,  as  well  as  of  the  American 
Constitution,  have  been  incorporated  into  it.  But 
notwithstanding  the  wonderful  adaptiveness  of  the 
Japanese  character  to  political  and  economic  innova- 
tions, it  remains  to  be  seen  how  much  of  their  new 
constitution  will  prove  effective,  and  how  much  will 
become  inoperative.  So  far  as  the  principles  of  their 
constitution  are  an  outcome  of  the  existing  Japanese 
civilization,  and  consequently  strike  a  responsive 
chord  in  the  national  heart,  will  the  constitution 
prove  a  permanent  and  living  rule  of  conduct.  It  is, 
of  course,  to  be  remembered  that  the  Japanese  rever- 
ence for  the  authority  of  the  Mikado,  and  the  long- 


CONSTITUTIONAL  LAW.  19 

established  national  habit  of  unquestioning  obedience 
to  the  imperial  commands,  will  go  far  towards  stifling 
popular  discontent,  or  dissipating  any  want  of  har- 
mony with  the  principles  and  rules  of  the  new 
constitution,  which  many  will  consider  and  receive 
as  the  commands  of  the  august  Mikado.  But  as 
soon  as  the  people  become  conscious  of  their  own 
power,  and  their  reverence  for  imperial  decrees  be- 
comes lessened  by  a  more  intimate  acquaintance  with 
the  principles  of  self-government  and  democratic  rule, 
the  untrammelled  political  sentiment  of  the  nation 
will  mould  the  existing  constitution  into  harmonious 
correspondence,  or  demand  its  complete  abolition  or 
revision. 

•  History  furnishes  numerous  examples  of  fruitless 
attempts  to  impose  constitutions  upon  people  whose 
principles  are  not  in  harmony  with  the  popular  po- 
litical sentiment.  ^  Locke  prepared  a  written  consti- 
tution for  the  Carolinas,  whose  principles  were  not  in 
harmony  with  the  popular  instinct  ;3Napoleon  Bona- 
parte prepared  paper  constitutions  for  the  nations 
whom  he  conquered,  and  unhappy  France,  refusing  to 
believe  that  "  constitutions  are  not  made,  they  grow," 
has  had  one  constitution  after  another,  in  her  effort 
to  secure  an  orderly  and  permanent  establishment  for 
a  republican  government.  And  it  is  not  difficult  to 
comprehend  that  the  failure  or  success  of  a  form  of 
constitution  and  government  in  the  experience  of  one 


20      THE  UNWRITTEN  CONSTITUTION. 

people  does  not  indicate  any  inherent  and  universal 
demerits  or  excellences,  or  assure  a  similar  experi- 
ence if  they  are  adopted  by  some  other  people. 
Englishmen  and  Americans  are  so  infatuated  with 
the  superior  qualities  of  their  constitutions  that  in 

their  canonization  of  them  they  are  led  to  believe 
hat  their  principles  are  of  universal  application,  and 
are  surprised  if  a  foreigner  criticises  them  from  the 
standpoint  of  foreign  needs  and  experience.  The 
English  and  American  constitutions  work  well,  and 
challenge  the  admiration  of  political  students,  not 
because  of  their  inherent  and  abstract  excellences — for 
it  would  be  no  arduous  or  insuperable  task  to  point 
out  several  glaring  defects,1  but  because  they  are 
in  complete  correspondence  with  the  political  sen- 
timent of  the  respective  nations,  and  are  themselves 
the  natural  products  of  Anglo-American  civiliza- 
tion. It  is  not  so  much  what  is  found  in  the  written 
constitution,  as  the  conservative,  law-abiding,  and  yet 
liberty-loving  character  of  the  Anglo-Saxon,  which 
guarantees  a  permanent  free  government  to  England 
and  to  the  United  States  of  America. 

What  gives  color  to  the  notion  that  the  American 
constitutions,  both  State  and  Federal,  are  the  volun- 
tary creation  of  man,  is  the  fact  that  they  are  written 
(so-called),  and  that  these  writings  have  been  formu- 
lated, enacted,  and  promulgated  by  representative 
conventions.  This  opinion  has  been  so  prevalent, 
1  See  many  passages  in  Bryce's  "American  Commonwealths." 


CONSTITUTIONAL  L4W.  21 

that  the  national  habit  is  to  look  upon  the  members  I 
of  the  convention  of  1787  as  demigods,  giant  heroes,  / 
far  surpassing  the  foremost  men  of  to-day,  while  the 
Constitution  itself  has  been  placed  upon  a  pedestal 
and  worshipped  as  a  popular  idol.  It  is  very  far  from 
my  purpose  to  deny  to  the  heroes  of  the  Revolution 
their  just  meed  of  praise,  or  to  subject  the  Federal 
Constitution  to  any  hostile  or  carping  criticism.  It 
is,  without  doubt,  the  best  political  constitution  that 
the  world  has  ever  seen,  and  some  of  its  fundamen- 
tal principles  are  worthy  of  universal  adoption.  But 
by  making  a  popular  idol  of  it,  we  are  apt  to  lose 
the  very  benefits  which  its  excellences  insure.  It 
is  the  complete  harmony  of  its  principles  with  the 
political  evolution  of  the  nation,  which  justly  chal- 
lenges our  admiration,  and  not  the  political  acumen 
of  the  convention  which  promulgated  it.  Instead, 
therefore,  of  being  the  voluntary  creation  of  the 
American  people  of  the  eighteenth  century,  the  Fed- 
eral and  State  constitutions  of  the  United  States  are 
but  natural  sequential  developments  of  the  British 
Constitution,  modified  as  to  detail  and  as  to  a  few 
fundamental  principles  by  the  new  environment. 
This  claim  is  easily  substantiated  by  the  most  super- 
ficial comparison  of  the  British  and  American  con- 
stitutions. 

Without  making  minute  reference  to  the  close 
similarity  of  the  town  and  county  organizations  un- 
der these  constitutions,  the  lineal  descent  of  the 


22      THE  UNWRITTEN  CONSTITUTION. 

American  constitutional  law  from  the  British  finds 
proof  in  the  fact  that  in  both  nations  the  attachment 
to  the  principles  of  local  government  challenges  the 
attention  and  admiration  of  the  critic.  Under  both 
systems  of  constitutional  law  we  find  an  unvarying  de- 
termination to  confine  the  exercise  of  governmental 
power  to  the  local  authorities  in  every  thing  affect- 
ing only  the  local  interests  ;  and  if  there  is  any  mate- 
rial difference  in  respect  to  the  scope  of  local  powers, 
it  is  to  be  found  to  consist  of  a  greater  localization 
of  power  under  the  British  Constitution,  in  this,  that 
the  taxation  for  local  purposes  is  in  Great  Britain 
invariably  within  the  control  of  the  county,  while  in 
the  United  States  the  taxes  for  the  same  purposes, 
outside  of  corporate  towns  and  cities,  although  ex- 
pended in  the  county  in  which  they  are  collected,  are 
imposed  by  the  legislature,  -Unless  the  power  of  taxa- 
tion is  expressly  conferred  upon  the  local  authorities.1 

1  "  From  time  immemorial  the  counties,  parishes,  towns,  and  terri- 
torial subdivisions  of  the  country  have  been  allowed  in  England,  and, 
indeed,  required  to  lay  rates  on  themselves  for  local  purposes.  .  .  . 
From  the  foundation  of  our  government,  colonial  and  republican,  the 
necessary  sums  for  local  purposes  have  been  raised  by  the  people  or 
authorities  at  home.  Court-houses,  prisons,  bridges,  poorhouses,  and 
the  like,  are  thus  built  and  kept  up,  and  the  expenses  of  maintaining 
the  poor,  and  of  prosecutions  and  jurors,  are  thus  defrayed,  and  of 
late  (in  North  Carolina)  a  portion  of  the  common  school  fund  and  a 
provision  for  the  indigent  insane  are  thus  raised,  while  the  highways  are 
altogether  constructed  and  repaired  by  local  labor,  distributed  under 
the  orders  of  the  county  magistrates." — Ruffin,  J.,  in  Caldwell  v. 
Justices,  etc.,  4  Jones  (N.  C.),  Eq.,  323. 


CONSTITUTIONAL  LAW.  23 

While  the  spirit  of  local  government  is  so  far 
obeyed,  in  the  matter  of  taxation  for  local  purposes, 
that  one  county  or  other  corporate  district  cannot  be 
taxed  for  the  local  purposes  of  another  county  or 
district,  and  the  money  collected  on  a  local  tax 
must  be  expended  in  the  same  county  or  district,  yet 
in  the  absence  of  express  legislative  authority,  the 
American  constitutional  law  denies  to  such  local 
authorities  the  power  to  impose  the  tax.1  But  with 
this  exception — which  is  accountable  only  on  the 
theory  advanced  by  Mr.  Taylor,3  that  this  doctrine 
of  local  government  was  lost  sight  of  in  the  general 
prevalence  and  application  of  the  political  notion 
that  all  legislative  power  was  limited  to  an  express 
grant  of  powers,  except  the  power  of  the  State  Gen- 
eral Assembly — it  is  manifest  that  local  government 
in  the  United  States  is  a  reproduction  of  the  local 
government  of  Great  Britain.  And  there  has  been 
so  little  change  in  the  character  and  powers  of  the 
local  government  officers,  that  one  can  obtain  a  very 

1  Cooley's  Const.  Lim.  (230),  283  (488),  605  ;  Litchfield  v.  Vernon, 
41  N.  Y.,  132  ;  Mobile  &  S.  H.  R.  Co.,  v.  Kennerly,  74  Ala.,  574; 
Booth  -v.  Woodbury,  32  Conn.,  118  ;  Speer  v.  School  Dist.,  50  Pa. 
St. ,  150.  And  the  levy  for  local  purposes  may  be  ordered  by  the  legis- 
lature, not  only  without  the  consent,  but  against  the  wishes,  of  the 
people  concerned.  Cheaney  v.  Hooser,  9  B.  Mon.,  330;  Slack  v. 
Maysville,  etc.,  R.  R.  Co.,  1-36.  Mon.,  I  ;  Cypress  Pond  Draining 
Co.  v.  Hooper,  2  Met.  (Ky.),  350. 

*  "Origin  and  Growth  of  the  English  Constitution,"  by  Hannis 
Taylor,  p.  43. 


24      THE  UNWRITTEN  CONSTITUTION. 

reliable  account  of  the  powers  and  duties  of  the 
American  sheriff,  coroner,  constable,  justice  of  the 
peace,  etc.,  by  reading  Mr.  Blackstone's  chapter  on 
inferior  administrative  officers. 

I  The  fundamental  division  of  governmental  powers 
'into  executive,  legislative,  and  judicial,  and  their  ex- 
ercise by  separate  and  independent  departments  of 
the  government,  form  a  striking  characteristic  of  both 
the  English  and  American  constitutions.  Even  be- 
fore they  had  emerged  from  the  colonial  state,  the 
Americans  had  adopted  this  doctrine,  and  divided 
their  local  governments  into  executive,  legislative, 
and  judicial  departments,  conceding  to  each  depart- 
ment the  powers  exercised  by  the  corresponding  de- 
partment of  the  English  government.  The  executive, 
for  many  reasons  other  than  the  existence  of  an  anti- 
monarchical  spirit,  could  only  obtain  the  essential 
powers  of  the  English  executive,  without  its  form 
and  tenure  of  office.  But  the  legislature  was  fashioned 
in  close  imitation  of  Parliament,  with  its  two  co- 
ordinate chambers,  with  the  single  variation  that  in 
the  upper  house  the  elective  principle  was  substituted 
for  the  hereditary  principle  ;  while  the  judiciary  not 
only  exercised  the  same  powers  as  the  English  judi- 
ciary, but  administered  justice  under  the  same  forms 
of  procedure,  and  in  courts  established  on  the 
English  itinerant  system,  viz. :  the  holding  of  court 
in  each  county  by  a  judge,  to  whom  was  assigned 


CONSTITUTIONAL  LAW.  25 

a    particular    circuit,    composed    of    one    or   more 
counties. 

When  the  present  Federal  Constitution  was  adop- 
ted, the  same  salient  features  were  given  to  the  Federal 
Government,  so  that  one  is  justified  in  saying,  that  a 
detailed  review  of  the  powers  of  the  various  depart- 
ments of  the  government  both  Federal  and  State, 
forces  one  to  the  conclusion  that  the  American  consti- 
tutions are,  in  the  main,  an  evolutionary  development 
of  the  British  Constitution1;  and  a  closer  study  of) 
the  two  systems  reveals  the  fact  that  every  principle,/ 
brought  into  play  by  the  American  constitutions/ 
that  has  ensured,  and  proved  effectual  in  the  attain- 
ment of  the  ends  aimed  at,  was  either  of  English 
origin,  or  was  the  direct  product  of  the  social  forces 
then  at  play  in  American  life. 

Nor  is  it  surprising  that  the  American  constitutions 
should  be  fashioned  in  imitation  of  the  British  Con- 
stitution. Not  only  were  the  men  who  led  and 
formed  public  opinion  in  the  colonies  thoroughly  ac- 
quainted with  English  constitutional  law,  many  of 
them  having  been  born  or  educated  in  the  United 


1  "  When  all  of  these  elements  of  likeness  are  considered,  who  can 
fail  to  perceive  that  the  typical  English  state  in  America  is,  in  a  con- 
stitutional sense,  simply  the  English  kingdom  transferred  to  a  new 
theatre,  where  it  has  entered  upon  a  wider  destiny,  with  its  political 
horizon  unclouded  by  the  waning  shadows  of  nobility,  feudality,  and 
kingship." — Taylor's  "Origin  and  Growth  of  the  English  Constitu- 
tion," p.  48. 


26      THE  UNWRITTEN  CONSTITUTION. 

Kingdom,1  but  the  universal  political  sentiment, 
under  the  influence  of  Montesquieu,  also  pronounced 
the  British  Constitution,  if  not  absolutely  perfect,  at 
least  the  best  the  world  ever  knew.2  Blackstone's 
Commentaries  and  Montesquieu's  "  Esprit  des  Lois  " 
were  the  two  books  which  the  students  of  political 
science  of  that  day  consulted  in  the  handling  of  social 
problems.  The  American  constitutions  could  not, 


1  "  The  Virginia  delegation   (to   the  constitutional  convention  of 
1787)  was  simply  a  brilliant  group  of  English  country  gentlemen  who 
had  been  reared  on  the  right  side  of  the  Atlantic.     Alexander  Hamilton 
and  Robert  Morris  were  born  English  subjects  ;  the  father  of  Franklin 
was  an  English  emigrant  from   Northamptonshire  ;    Charles  Cotes- 
worth  Pinckney  had  been  educated  at  Oxford  and  the  Middle  Temple  ; 
Rutledge  had  studied  law  at  the  Temple  ;  and  James  Wilson,  the 
most  far-sighted  man  perhaps  in  the  whole  convention,  was  born  near 
St.  Andrews,  in  Scotland.     As  to  political  training,  they  had  all  been 
reared  under  the  English  system  of  local  self-government  which  had 
grown  up  alongside  of  the  English  customary  law  in  the  several  States 
which  they  represented.     These  States  they  had  helped  to  transform 
from  English  provinces  into  independent  commonwealths  whose  con- 
stitutions were  substantial  reproductions  of  that  of  the  English  king- 
dom.    In  fine,  the  only  practical  conception  of  the  State  which  they 
possessed  was  that  embodied  in  the  constitution  of  the  old  land,  modi- 
fied as  it  had  been  in  the  new  by  the  abolition  of  nobility,  feudality, 
and  kingship." — Taylor's  "  Origin  and  Growth  of  the  English  Consti- 
tution," p.  62. 

2  ' '  The  British  Constitution  was  to  Montesquieu  what  Homer  had 
been  to  the  didactic  writers  on  epic  poetry.     As  the  latter  have  con- 
sidered the  work  of  the  immortal  bard  as  the  perfect  model  from  which 
the  principles  and  rules  of  the  epic  art  were  to  be  drawn,  and  by  which 
all  similar  works  were  to  be  judged  ;  so  this  great  political  critic  ap- 
pears to  have  viewed  the  Constitution  of  England  as  the  standard,  or, 
to  use  his  own  expression,  as  the  mirror,  of  political  liberty." — Feder- 
alist, No.  xlvii,  p.  300. 


CONSTITUTIONAL  LAW.  27 

therefore,  be  any  thing  else  but  adaptations  of  the 
British  Constitution. 

In  the  formation  of  the  Federal  Constitution  other 
forces  were  at  work,  which  compelled  some  slight 
and  some  radical  departures  from  the  English  forms. 
In  the  struggles  of  the  colonies  against  the  unjust 
encroachments  of  the  mother-country  on  their  right 
of  self-government,  they  had  united  in  congresses 
called  for  the  consideration  of  their  common  welfare ; 
but  until  the  actual  outbreak  of  hostilities,  the  Con- 
gress had  not  attempted  the  assertion  or  exercise  of 
any  superior  or  superintending  control  of  the  colo- 
nies. All  the  actions  of  the  congresses  were  recom- 
mendatory in  form  and  fact.  But  with  the  publication 
of  the  Declaration  of  Independence,  Congress  did 
assume  many  of  the  powers  of  a  superior  government, 
especially  the  general  conduct  of  the  war  with  Eng- 
land and  of  intercourse  with  the  foreign  powers. 
The  government,  thus  established,  was  of  course 
revolutionary,  and  remained  so  until  the  Articles  of 
Confederation  were  adopted  by  the  States  and  put 
into  operation.  The  fact  that  there  had  been  no 
legal  union  of  the  colonies,  except  through  their 
common  subjection  to  England,  coupled  with  the 
dread  and  hatred  of  all  external  or  superior  govern- 
ments, which  had  been  engendered  by  England's 
tyrannical  exercise  of  her  power,  had  accustomed 
the  popular  mind  to  the  thought  that  each  State  was 


28      THE  UNWRITTEN  CONSTITUTION. 

supreme,  and  that  their  liberty  depended  upon  the 
retention  of  this  state  supremacy,  combining  with 
each  other  in  the  capacity  of  sovereign  states,  only  as 
far  as  this  was  necessary  for  the  common  defence  or 
promotive  of  the  general  welfare. 

The  educated  men  of  that  day  were  classical 
scholars,  and  were  acquainted  with  the  previous 
attempts  made  to  establish  federal  government; 
but,  according  to  the  knowledge  then  had  of  these 
attempts,  all  of  them  had  resulted  in  the  establish- 
ment of  nothing  more  than  a  league,  while  the 
several  members  of  the  league  retained  their  supreme 
powers.  Under  these  circumstances  it  was  but  natu- 
ral that  their  ignorance  of  the  great  possibilities 
of  federal  government  should  combine,  with  their 
dread  of  foreign  or  external  governments,  to  create 
a  league,  instead  of  a  centralized  state.  Hence  the 
Articles  of  Confederation  contained  very  meagre 
grants  of  powers  to  the  general  government ;  and  in 
no  instance  was  the  general  government  permitted 
to  exercise  any  control  over  the  individual  citizen, 
every  decree  of  Congress  being  a  requisition  upon 
the  States,  which  Congress  had  not  the  power  to 
enforce,  and  which  the  States  complied  with  or 
ignored,  as  they  pleased. 

A  government,  so  weak  that  it  did  not  even  com- 
mand the  respect  of  the  people,  much  less  their 
obedience,  could  not  last  long.  Every  thoughtful 


CONSTITUTIONAL  LAW.  29 

man  of  the  day  was  impressed  with  the  gravity 
of  the  situation,  and  looked  forward  to  the  future 
with  the  most  anxious  forebodings.  Internal  dissen- 
sions and  local  prejudices,  intense  love  of  local 
government,  and  an  implacable  hatred  of  any  su- 
perior power,  co-operated  to  make  anarchy  appar- 
ently inevitable,  and  justify  the  claim  "that  the 
most  critical  period  of  the  country's  history  embraced 
the  time  between  1783  and  the  adoption  of  the 
Constitution  in  I/88."1  The  forces  of  disintegra- 
tion were  so  strong  that  any  more  perfect  union 
was  despaired  of.  It  was  only  by  a  gradual  and 
diplomatic  approach  to  the  end  in  view  that  the 
adoption  of  the  present  Constitution  was  secured. 
The  first  step  taken  was  the  cession  to  the  general 
government  of  the  lands  in  the  limitless  and  un- 
explored West,  to  be  held  and  administered  as  a 
common  fund  for  the  benefit  of  all  the  States. 
From  the  necessity  of  the  case,  the  general  govern- 
ment thus  acquired  a  dignity  and  respectability  of 
character  which  it  did  not  possess  before,  and  the 
necessary  assumption  of  supreme  power  over  this 
vast  territory,  however  small  the  practical  exercise  of 
authority  was,  accustomed  the  people  somewhat  to 

1  Trescot's  ' '  Diplomatic  History  of  the  Administrations  of  Wash- 
ington and  Adams,"  p.  9.  See  also,  to  the  same  effect,  John  Fiske's 
"Critical  Period  of  American  History,  1783-1789,"  which  gives  a 
brilliant  exposition  of  American  struggle  for  national  unity. 


3o      THE  UNWRITTEN  CONSTITUTION. 

the  possession  by  the  general  government  of  the 
powers  of  sovereignty;  while  the  existence  of  this 
large  territory  as  a  common  fund  served  in  itself, 
through  the  promptings  of  self-interest,  to  strengthen 
the  tie  that  bound  the  States  together.  The  credit 
of  this  initial  step  towards  the  establishment  of  a 
permanent  union  of  the  States  is  due  to  Maryland, 
who  persistently  refused  to  sign  the  Articles  of 
Confederation  until  she  was  assured  of  the  cession 
of  these  lands  to  the  Union. 

The  next  step  was  the  formation  by  Virginia  and 
Maryland,  under  the  inspiration  of  Washington,  of  a 
joint  commission  for  the  mutual  control  of  the  navi- 
gation of  the  Potomac  River.  Inasmuch  as  the 
control  of  this  river  would  involve  more  or  less  the 
control  of  the  Ohio,  whose  head-waters  joined  with 
those  of  the  Potomac,  Pennsylvania  was  invited  to 
join  with  the  other  two  States  in  this  commission. 
Other  matters  of  common  concern,  such  as  the  regu- 
lation of  the  currency  and  other  commercial  regula- 
tions, were  suggested  for  consideration  by  this 
commission.  After  some  delay,  and  as  a  result  of 
these  efforts  of  union  for  commercial  and  economical 
purposes,  the  Virginia  legislature  passed  a  motion, 
inviting  all  the  States  to  appoint  commissioners  to 
meet  at  Annapolis  for  the  consideration  of  the  best 
method  of  securing  a  uniform  regulation  of  com- 
merce. The  attendance  at  the  Annapolis  convention 


CONSTITUTIONAL  LAW.  31 

was  not  large  enough  to  enable  any  effective  action 
to  be  taken,  and,  after  much  discussion,  the  commis- 
sioners adopted  a  resolution  urging  the  appointment 
of  commissioners,  to  convene  in  Philadelphia  in  the 
following  May,  "  to  devise  such  further  provisions  as 
shall  appear  to  them  necessary  to  render  the  Consti- 
tution of  the  federal  government  adequate  to  the 
exigencies  of  the  Union,  and  to  rep'ort  to  Congress 
such  an  act  as,  when  agreed  to  by  them,  and  con- 
firmed by  the  legislatures  of  every  State,  would 
effectually  provide  the  same." 

Congress  did  not  immediately  agree  to  this  propo- 
sition for  a  convention,  but  the  suffering  of  the  peo- 
ple, and  their  growing  discontent,  followed  by  fre- 
quent riotous  outbreaks  of  the  most  serious  sort, 
finally  compelled  Congress  to  take  the  necessary 
action,  and  a  resolution  was  adopted,  recommending 
a  convention  in  Philadelphia,  in  May,  1787,  of  dele- 
gates from  the  States  "  for  the  purpose  of  revising 
the  Articles  of  Confederation,  and  reporting  to  Con- 
gress and  the  several  legislatures  such  alterations  and 
provisions  therein  as  shall,  when  agreed  to  in  Con- 
gress and  confirmed  by  the  States,  under  the  Federal 
Constitution,  be  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  Union."  : 

1  See  Chapter  V.  of  Mr.  Fiske's  "  Crifical  Period  of  American 
History,"  entitled  "  Germs  of  National  Sovereignty,"  for  a  very  inter- 
esting and  graphic  account  of  the  growth  of  the  demand  for  a  more 
effective  national  government. 


32      THE  UNWRITTEN  CONSTITUTION. 

But  the  local  pride  and  prejudices  of  the  people 
were  not  the  only  serious  obstacles  in  the  way  of  an 
increase  of  the  powers  of  the  Federal  Government, 
which  fell  short  of  a  complete  extinction  of  the  States 
as  independent  bodies  politic.  It  was  idle  to  advo- 
cate the  absorption  of  the  States  into  one  composite 
state.  The  people  would  have  rejected  such  a 
proposition  with  vehemence  and  indignation.  And 
yet  history  had  never  produced  a  federal  govern- 
ment which  was  not  a  league.  The  Federal  Union, 
under  the  Articles  of  Confederation,  was  only  a 
league,  and  neither  claimed  nor  exercised  any  au- 
thority over  the  individual  citizen.  The  experience 
of  the  people  under  these  Articles  of  Confederation, 
had  demonstrated  the  futility  of  the  attempt  of  thsr 
Federal  Government  to  assume  the  powers  of  govern  • 
ment,  without  the  ability  and  right  to  compel  the 
obedience  of  the  individual  to  its  commands  ;  and 
yet  the  past  experience  of  the  world  suggested  no 
relief  or  remedy.  It  was  reserved  for  an  American 
to  create  an  absolutely  new  political  idea  of  the 
most  transcendent  importance,  and  which  has  ulti- 
mately solved  the  problem  of  combining  a  strong 
central  government  with  an  independent  local  gov- 
ernment. 

In  February,  17^,  Pelatial  Webster  published  "A 
Dissertation  on  the  Political  Union  and  Constitution 
of  the  Thirteen  United  States  of  North  America," 


CONSTITUTIONAL  LA  W.  33 

which  was  a  year  later  followed  by  another  of  the 
same  tenor,  by  Noah  Webster,  in  both  of  which  was 
proposed  "  a  new  system  of  government  which  should 
act,  not  on  the  States,  but  directly  on  individuals,  and 
vest  in  Congress  full  power  to  carry  its  laws  into 
effect."  When  we  consider  for  a  moment  the  won- 
derfulness  of  two  separate  and  in  many  respects  in- 
dependent governmental  agencies  exerting  their  pow- 
ers over  the  same  territory,  and  each  within  its  own 
sphere  commanding  the  obedience  of  the  same  peo- 
ple, there  is  no  occasion  for  surprise  that  it  required 
a  century  of  experience  under  the  new  government 
to  fully  appreciate  its  significance  and  effect.  The 
successful  maintenance  of  the  separate  autonomy  of 
the  Federal  and  State  governments  for  a  century, 
through  all  the  vicissitudes  of  political  fortune  which 
fell  to  the  lot  of  the  people  of  the  United  States, 
furnished  an  enigmatical  contradiction  of  the  preva- 
lent notions  of  an  indivisible  sovereignty.1 

If  there  be  such  a  thing  in  politics  as  sovereignty, 
it  is  necessarily  indivisible,  and  hence  it  is  impossible 
to  subject  a  territory  and  people  to  two  separate  and 
independent  governments  without  one  of  them  becom- 
ing subordinate  to,  and  the  instrument  of,  the  other. 
And  I  am  satisfied  that  the  political  leaders  of  the 

1  As  to  the  absurdities  taught  under  the  doctrine  of  political  sov- 
ereignty, see/w/.  Chapter  IX.  on  "  State  Sovereignty  and  the  Right 
of  Secession." 
3 


34      THE  UNWRITTEN  CONSTITUTION. 

day,  such  as  Hamilton,  Madison,  and  Randolph, 
who  made  such  strenuous  efforts  to  establish  a  strong 
federal  government,  put  no  faith  in  the  feasibility  of 
a  dual  government  of  this  sort.  For,  upon  the 
assembling  of  the  constitutional  convention,  these 
statesmen  advocated  the  establishment  of  a  supreme 
federal  government,  which  would  reduce  the  States 
to  subordinate  provinces  ;  and  they  did  not  yield  to 
the  demands  of  the  advocates  of  State  rights  until  it 
was  demonstrated  that  the  convention  would  not 
adopt  a  centralized  government.  They  feared,  and 
the  struggles  of  seventy-five  years  justified  their 
fears,  that  the  two  governmental  agencies  could  not 
maintain  their  independent  autonomy.  But  against 
their  will  and  in  spite  of  their  fears  this  became  the 
fundamental  principle  of  the  American  governmental 
agencies,  about  which  the  pplitical  forces  played 
with  more  or  less  vehemence  for  three  quarters  of  a 
century,  until,  as  a  declaration  of  the  results  of  the 
mighty  crisis,  the  Supreme  Court  of  the  United 
States  pronounced  this  country  to  be  "  an  indestruc- 
tible Union  composed  of  indestructible  States."  * 

1  "  But  the  perpetuity  and  indissolubility  of  the  Union  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right  of 
self-government  by  the  States.  Without  the  States  in  union  there 
could  be  no  such  political  body  as  the  United  States.  (Lane  County 
v.  Oregon,  7  Wall.,  71,  76.)  Not  only,  therefore,  can  there  be  no 
loss  of  separate  and  independent  autonomy  to  the  States,  through 
their  union  under  the  Constitution,  but  it  may  not  unreasonably  be 
said  that  the  preservation  of  the  States  and  the  maintenance  of  their 


CONSTITUTIONAL  LA  W.  35 

It  was  the  adoption  of  this  principle  which  changed 
the  Federal  Union  from  a  league  to  a  composite  state ; 
or,  to  go  to  the  German  for  apt  expressions,  from  a 
Staatenbund  to  a  Bundestaat,  from  a  union  of  States 
to  a  state  founded  by  the  union  of  States.1 

In  the  constitutional  convention  of  1787,  every 
complexion  of  political  thought  was  represented ; 
and  while,  with  the  exception  of  a  few  irreconcilables, 
the  entire  convention  felt  the  need  of  some  radical 
change  in  the  form  or  powers  of  the  Federal  Govern- 
ment, they  were  by  no  means  agreed  as  to  the 
proper  measures  for  reform.  They  had  assembled 
under  instructions  from  Congress  for  the  purpose  of 
revising  the  Articles  of  Confederation,  and  hence 
they  were  not  authorized  to  make  any  organic 
change  in  the  character  of  the  National  Government. 
But  having  assembled  in  convention,  and  placed 
themselves  under  a  pledge  to  keep  the  deliberations 
of  the  convention  secret,  until  the  new  government 
had  become  firmly  established,  the  Virginia  delega- 
tion, aided  by  Hamilton,  Wilson,  and  others,  declared 
themselves  boldly  in  favor  of  the  revolutionary  step 
of  proposing  an  organic  change  in  the  form  of  gov- 

governments  are  as  much  within  the  design  and  care  of  the  Constitu- 
tion as  the  preservation  of  the  Union  and  the  maintenance  of  the 
national  government.  The  Constitution  in  all  its  provisions  looks  to 
an  indestructible  Union  composed  of  indestructible  States." — Chase, 
Ch.-J.,  in  Texas  v.  White,  7  Wall.  700,  725. 

*See/<w/.  Chapter  IX.  on  "State  Sovereignty  and  the  Right  of 
Secession." 


36      THE  UNWRITTEN  CONSTITUTION. 

ernment ;  and  they  pointed,  as  a  justification  of 
their  extreme  action,  to  the  impotence  of  the  Federal 
Government  as  long  as  its  fundamental  character 
remained  unchanged.  The  Virginia  plan  of  govern- 
ment was  then  introduced,  which  provided  for  a 
bicameral  congress,  both  houses  of  which  were 
to  represent  the  people  of  the  United  States  at 
large  instead  of  the  States.  Under  this  plan  of 
government  Congress  was  not  only  to  have  the 
right  to  command  directly  the  obedience  of  indi- 
viduals, but  also  to  exercise  a  negative  upon  all 
State  legislation,  by  declaring  what  State  legisla- 
tion was  constitutional.  The  adoption  of  this  plan 
would  have  thrown  the  Federal  Government  com- 
pletely into  the  control  of  the  larger  States.  It  is  not 
surprising  that  the  smaller  States  opposed  its  adop- 
tion and  offered  a  substitute,  known  as  the  New 
Jersey  plan,  which  consisted  only  of  a  revision  of 
the  existing  articles  by  giving  to  Congress  the  power 
to  regulate  foreign  and  domestic  commerce,  to  levy 
duties  on  imports,  and  to  raise  revenue  by  means  of 
a  stamp  act.  By  the  presentation  of  these  two 
plans,  the  opposing  parties  were  brought  face  to 
face,  and  their  contentions  for  the  mastery  came 
near  causing  a  disbanding  of  the  convention.  It  is 
very  likely,  too,  that  the  convention  would  have 
adjourned  without  having  accomplished  any  thing, 
had  not  the  urgent  necessities  of  the  political  situa- 


CONSTITUTIONAL  LAW.  37 

tion  compelled  some  action.  It  will  not  be  neces- 
sary to  give  in  this  place  any  minute  account  of 
the  contests  between  these  opposing  forces.  Suffice 
it  to  say  that  a  compromise  was  effected,  by  giving 
equal  representation  to  the  States  in  the  Senate, 
while  the  representatives  were  to  be  apportioned 
according  to  population,  the  Senate  representing 
the  States,  while  the  House  of  Representatives 
represented  the  people  at  large. 

Other  compromises  followed,  but  wherever  there 
was  no  contest,  the   English  precedents  were    fol-\ 
lowed,  as  in  the  formation  of  the  State  governments,  / 
so  that  the  President  of  the  United  States,  like  the 
governors  of  the  States,  was  an  imitation  of  George 
III.,  with  the  elective  principle  substituted   for  the 
hereditary ;    while  the  Senate  corresponded  to  the 
House  of  Lords,  and  the  House  of  Representatives 
to  the  House  of  Commons. 

It  is  certainly  not  necessary  to  go  into  detail 
in  order  to  prove  that  in  the  main  the  American 
constitutions  are  an  evolutionary  growth  out  of  the 
British  Constitution.  There  are,  however,  several 
principles  developed  and  brought  into  play  by  the 
struggles  for  national  life,  which  are  not  traceable  to 
the  British  Constitution,  at  least,  not  in  the  shape  in 
which  they  were  made  to  operate  in  this  country. 
I  have  already  alluded  to  the  development  of  the 
new  form  of  federal  government.  That  certainly 


38      THE  UNWRITTEN  CONSTITUTION. 

finds  no  parallel  in  British  history.  Another  new 
principle,  which  first  found  expression  in  American 
politics,  and  which  even  now  to  some  extent  escapes 
the  comprehension  of  European  jurists,  is  that  all 
governmental  agencies  are  the  creatures  of  the  will 
of  the  people,  and  are  subject  to  limitations  imposed 
upon  them  by  the  popular  will.  Parliament  is  / 
legally  supreme,  and  so  is  every  European  govern- 
ment, whether  it  be  republican  or  monarchical.  No  / 
act  of  such  governments  can  be  unconstitutional  in  I 
the  American  sense,  for  these  governments  have  the 
power  to  change  the  constitutions  at  will.  But 
inasmuch  as  in  the  United  States  the  people  them- 
selves ordained  and  established  their  constitutions, 
and  they  alone  can  alter  and  amend  them,  any  actf 
of  the  legislatures  or  of  Congress,  which  transcends 
the  provisions  of  the  Constitution,  would  be  uncon-' 
stitutional  and  void.  This  is  the  fundamental  doc- 
trine of  American  constitutional  law,  and  it  is  only 
feasible  where  there  is  a  written  constitution  con- 
taining explicit  grants  or  limitations  of  power.  But 
while  this  principle  is  not  to  be  found  in  the  consti- 
tutional law  of  any  other  country,  it  must  not  be 
inferred  that  it  was  a  spontaneous  creation.  The 
American  mind  was  undoubtedly  prepared  for  the 
development  of  the  principle  by  the  fact,  that  all, 
or  almost  all,  the  colonial  governments  had  been 
established  under  written  charters,  in  which  the 


CONSTITUTIONAL  LAW.  39 

powers  of  the  colonial  governments  were  more  or 
less  explicitly  set  forth.  If  the  colonial  government 
transcended  these  powers,  the  act  was  void,  and 
could  not  have  the  force  of  law.  The  residuum  of 
power  was  held  to  be  in  the  British  Grown.  When 
the  thirteen  colonies  were  declared  to  be  free  and 
independent  States,  this  residuum  had  to  be  lodged 
somewhere,  and,  of  course,  in  accordance  with  the 
political  philosophy  of  the  French  schools,  which  at 
that  time  had  already  obtained  a  strong  hold  upon 
the  American  mind,  it  was  held  to  be  reserved  to  the 
people.  The  people  were  thus  held  to  be  the  mas- 
ters, while  the  officials  were  the  servants,  who  could 
only  lawfully  do  the  bidding  of  the  people..  It 
is  in  this  way  that  the  fundamental  doctrine  of 
American  democracy  became  established. 

The  third  new  principle  developed  in  the  Ameri- 
can constitutional  law  was  the  power  of  the 
courts  to  declare  an  act  of  the  legislature  void 
which  contravened  a  provision  of  the  Constitution. 
But  this  principle  is  only  a  consequence  of  the 
principle  that  all  governmental  agencies  are  the 
servants  of  the  people,  who  can  exercise  only  those 
powers  which  are  conceded  to  them  by  the  written 
power  of  attorney.  The  courts  are  obliged  to  con- 
strue and  determine  the  law,  whenever  a  question 
is  raised  before  them  by  parties  litigant,  and,  being 
the  servant  of  the  people,  they  must  obey  the  Con- 


40     THE  UNWRITTEN  CONSTITUTION. 

stitution  rather  than  an  act  of  the  legislature  which 
violates  the  Constitution.  For  such  an  act  of  the 
legislature  is  not  law.  It  being  the  duty  of  the 
courts  to  declare  what  is  the  law,  they  are  obliged 
to  determine  when  legislative  acts  are  constitutional 
or  unconstitutional.  The  colonial  courts  were  habit- 
ually exercising  this  power,  and  the  novelty  in  its 
exercise  by  the  courts  after  the  recognition  of  the 
independence  of  the  States  consists  simply  of  the 
fact  that  there  was  then  no  foreign  or  superior  govern- 
ment whose  commands  were  obeyed  in  refusing 
to  give  effect  to  the  legislation  of  the  inferior  govern- 
ment. The  charters  of  government  were  then 
enacted  by  the  people,  instead  of  by  a  superior 
government. 

A  summary  account  has  thus  been  given  of  the 
development  of  the  American  constitutions,  Federal 
and  State,  and  while  there  has  been  a  rigorous 
exclusion  from  the  narrative  of  the  details  which 
can  be  obtained  in  any  respectable  history  of  those 
times,  I  believe  no  serious  objection  would  now  be 
raised'  to  the  claim  that  the  constitutional  law  of 
the  United  States,  at  least  up  to  the  adoption  of 
the  written  constitutions,  was  developed  along  the 
same  lines,  as  has  been  shown  by  the  preceding 
chapter  to  be  the  case  with  law  in  general,  viz.,  * 
that  the  constitutional  law  was  the  resultant  of  all 
the  social  and  other  forces,  which  went  to  make  up 


CONSTITUTIONAL  LAW.  41 

the  civilization  of  the  people.  No  serious  difficulty 
in  proving  this  part  of  the  proposition  was  anti- 
cipated. But  when  the  claim  is  made  that  the 
establishment  of  written  constitutions  has  not  ma- 
terially altered  the  law  of  constitutional  develop- 
ment, that  American  constitutional  law  follows  and 
registers  all  material  changes  in  public  opinion,  as 
unerringly  as  the  needle  follows  the  magnetic  merid- 
ian, we  are  prepared  for  a  most  vigorous  opposition. 
The  commonly  accepted  doctrine  is  that  unwritten 
constitutions,  like  the  British  Constitution,  reflect 
accurately  and  promptly  the  mutations  of  public 
opinion,  for  Parliament,  being  subject  to  no  legal 
limitations,  with  its  hand  constantly  on  the  public 
pulse,  in  every  case  of  permanent  and  effective 
legislation,  simply  records  the  decree  of  the  people  ; 
and  if  that  decree  involves  the  adoption  of  a  new 
fundamental  principle,  a  change  is  thus  wrought  in 
the  British  Constitution.  But  since  the  American 
constitutions  are  written  and  are  established  by  a 
higher  power,  as  a  limitation  of  the  powers  of  gov- 
ernment, it  is  impossible  for  any  changes  in  the 
Constitution  to  be  made  lawfully,  except  by  the 
power  which  created  the  Constitution,  viz.,  the  peo- 
ple of  the  United  States,  or  of  the  States,  respec- 
tively. Recognizing  the  necessity  for  changes  in 
constitutional  law,  in  order  that  it  may  conform  to 
the  changes  in  popular  opinion  and  public  wants, 


42      THE  UNWRITTEN  CONSTITUTION. 

the  framers  of  the  constitutions  have,  in  each  case, 
provided  for  the  adoption  of  amendments.  This  is 
generally  accepted  as  the  only  way  in  which  Ameri- 
can constitutions  may  be  changed. 

If  the  entire  constitutional  law  of  the  American 
system  of  government  had  been  reduced  to  writing, 
and  incorporated  into  one  instrument,  the  funda- 
mental obligation  of  obedience  to  the  written  word, 
which  is  required  by  public  opinion  in  every  system 
of  jurisprudence,1  until  the  power  which  enacted  it 
had  repealed  it,  would  bring  about  a  practical  prohibi- 
tion of  any  change  in  the  Constitution,  except  in 
the  prescribed  way  of  amendment.  And  it  is  be- 
cause the  State  constitutions  enter  more  or  less  into 
the  details  of  constitutional  law,  that  constitutional 
conventions  are  called  more  or  less  frequently  for 
the  purpose  of  revision.  A  convention  has  never 
been  called  for  the  revision  of  the  Federal  Constitu- 
tion;  and  the  probability  is  that  there  never  will 
be,  as  long  as  this  government  remains  Federal 
and  Republican.  For  if  such  a  necessity  would 
be  likely  to  arise,  it  would  have  arisen  as  a  result 
of  the  great  contest  of  opposing  forces,  which  was 
settled  finally  and  forever  by  the  surrender  at  Appo- 
mattox.  If  the  Federal  Constitution  had  con- 
sisted of  any  thing  more  than  the  skeleton  of  con-' 
stitutional  law,  the  same  necessity  for  constitutional 

1  See  the  discussion  on  this  point  in  the  preceding  chapter. 


CONSTITUTIONAL  LAW.  43 

conventions  would  have  been  felt,  as  has  been  ex- 
perienced in  respect  to  the  State  constitutions.  For 
it  is  a  demonstrated  fact  that  the  fragility  and  insta- 
bility of  a  constitution  are  in  direct  proportion  to 
the  multiplicity  of  its  written  rules.  It  is  for  the 
reason  that  the  Federal  Constitution  contains  only 
a  declaration  of  the  fundamental  and  most  general 
principles  of  constitutional  law,  while  the  real,  living 
constitutional  law, — that  which  the  people  are  made 
to  feel  around  and  about  them,  controlling  the  ex- 
ercise of  power  by  government,  and  protecting  the 
minority  from  the  tyranny  of  the  majority — the 
flesh  and  blood  of  the  Constitution,  instead  of  its 
skeleton,  is  here,  as  well  as  elsewhere,  unwritten  ; 
not  to  be  found  in  the  instrument  promulgated  by 
a  constitutional  convention,  but  in  the  decisions 
of  the  courts  and  acts  of  the  legislature,  which  are 
published  and  enacted  in  the  enforcement  of  the 
written  Constitution.  The  unwritten  constitutioi 
of  the  United  States,  within  the  broad  limitations  oi 
the  written  Constitution,  is  just  as  flexible,  an< 
yields  just  as  readily  to  the  mutations  of  public 
opinion  as  the  unwritten  constitution  of  Great 
Britain.  But  the  opponents  of  this  theory  would 
doubtless  claim  that  the  saving  clause — within  the 
broad  limitations  of  the  written  Constitution — de- 
prives the  theory  of  its  value.  That,  however,  is 
only  a  superficial  appearance.  For,  if  by  judicial 


44      THE  UNWRITTEN  CONSTITUTION. 

interpretation,  in  obedience  to  the  stress  of  public 
opinion  or  private  interests,  the  express  limitations 
of  the  written  Constitution  are  made  to  mean  one 
thing  at  one  time,  and  at  another  time  an  altogether 
different  thing,  there  is  very  little  restraint  imposed 
by  these  written  limitations.  The  only  obstacle  in 
the  way  of  an  untrammelled  popular  will  is  the  bald 
letter  of  the  Constitution ;  and  even  that  does  not 
chain  the  popular  will  in  times  of  great  excitement 
and  extreme  necessity.1  This  is  what  is  meant 
and  what  has  been  attained  by  the  doctrine  of  the 
implied  grant  of  powers,  which  was  elaborated  by 
Chief- Justice  Marshall,  and  without  which  the  Fed- 
eral Constitution  would  not  have  lasted  a  half- 
century. 

Mr.  Jefferson  was  right  when  he  said  that  John 
Marshall  and  the  Supreme  Court  were  engaged  in 
making  a  constitution  for  the  government.  And  the 
Supreme  Court  has  continued  to  make  constitutional 
law  ever  since.  It  is,  no  doubt,  convenient  for  the 
practical  lawyer  to  accept  the  fiction  that  the  judge 
does  not  make  law  ;  that  he  simply  declares  what  was 
the  pre-existing  law  ;  but  the  critical  student  of  politi- 
cal science  repudiates  it  in  the  presence  of  the 
undoubted  formulation  by  the  courts  of  principles, 
never  before  enunciated,  and  which  in  many  cases 
conflict  hopelessly  with  the  fundamental  principles 

1  See>v/.,  Chapter  VII.,  The  Constitution  in  the  War  of  Secession. 


:• 


CONSTITUTIONAL  LA  W.  45 

of  the  past.  No,  the  great  body  of  American  con- 
stitutional law  cannot  be  found  in  the  written  in- 
struments, which  we  call  our  constitutions ;  it  is 
unwritten,  in  the  constitutional  and  legal  acceptation 
of  the  term,  and  is  to  be  found  in  the  decisions  of  the 
courts  and  the  acts  of  the  National  and  State  legisla- 
tures, constantly  changing  with  the  demands  of  the 
popular  will.  These  mutations  are  not  so  notable  or 
so  striking  in  the  constitutional  law  of  the  States,  as 
in  that  of  the  United  States,  nor  are  they  so  fre- 
quent ;  but  the  difference  is  only  in  degree,  and  is  to 
be  accounted  for  on  the  ground,  that  the  State  con- 
stitutions are  not  so  elementary  as  the  Federal 
Constitution,  and  are  therefore  more  inflexible,  and 
hence  require  frequent  revisions  by  constitutional 
convention. 

In  the  succeeding  pages,  I  will  give  striking  exam- 
ples of  the  mutations  of  constitutional  law,  which 
will,  I  think,  incontestably  prove  the  correctness  of 
my  thesis ;  and,  after  proving  that  the  changes  do 
occur,  I  will  attempt  to  give  a  logical  and  ethical 
justification  of  the  fact. 


CHAPTER  III. 

THE   ELECTORAL  COLLEGE. 

\]As  a  consequence  of  the  struggles  of  the  State- 
rights  and  National  parties,  in  the  convention  of 
1 787,  the  selection  of  a  President  was  provided  for  on 
a  very  unique  plan.  In  order  to  keep  the  executive 
separate  from  and  independent  of  the  other  depart- 
ments of  the  government,  some  method  had  to  be 
adopted,  whereby  his  election  could  be  had  without 
the  instrumentality  of  Congress.  In  order  to  satisfy 
the  National  party,  the  principle  of  popular  represen- 
tation had  to  be  recognized,  while  State  lines  could 
not  be  ignored  without  causing  dissatisfaction  among 
the  adherents  of  State  sovereignty  ;  and  there  was 
entire  unanimity  among  the  delegates  of  all  shades 
of  political  thought  that  the  President  and  Vice- 
President  should  be  selected  free  from  party  strife, 
so  that  they  could  faithfully  represent  the  people, 
irrespective  of  party  ties  and  party  policies.  ,/To 
meet  every  demand,  the  convention  devised  the  plan 
of  election  by  electors  chosen  by  the  States,  each 
State  to  choose  as  many  electors  as  it  had  senators 

46 


THE  ELECTORAL  COLLEGE.  47 

^ 
and    representatives    in   Congress.     These    electors 

were  required  to  meet  in  their  respective  States  to 
cast  their  votes  for  the  men  whom  they  considered 
best  fitted  to  assume  the  responsible  duties  of  these 
offices.  These  votes,  sealed  up,  were  to  be  trans- 
mitted to  Congress,  and  to  be  opened  by  the  Presi- 
dent of  the  Senate  and  counted  in  the  presence  of 
the  two  Houses  assembled  in  joint  session.  Provision 
was  made  for  election  by  the  Houses  of  Congress, 
the  President  by  the  House  of  Representatives,  and 
the  Vice-President  by  the  Senate,  in  case  no  one 
received  a  majority  of  all  the  votes  cast. 

One  great  object,  held  in  view  in  the  adoption  of  \ 
this  artificial  system  of  election,  was  to  remove  the  j 
selection  of  the  President  as  far  away  from  the  people 
as  it  was  possible.  Not  only  was  that  object  mani- 
fest by  the  adoption  of  the  plan  itself,  but  it  was  to 
be  observed  by  the  manner  of  selecting  the  electors, 
viz.,  by  the  State  legislatures,  which  at  first  generally 
prevailed.  In  the  first  two  elections,  there  was  no 
party  strife,  for  no  one  appeared  as  a  candidate  for 
the  Presidency  in  opposition  to  the  man  who  was 
facile  princeps  among  his  countrymen.  But  even  in 
the  second  election,  in  respect  to  the  Vice-Presi- 
dency, party  influence  began  to  be  felt  in  the  actions 
of  the  electoral  college.  The  electors  who  leaned  to 
the  Federal  party  were  expected  to  vote  for  John 
Adams,  while  the  anti-Federalists  were  expected 


48      THE  UNWRITTEN  CONSTITUTION. 

to  vote  for  George  Clinton.  But  in  the  third  elec- 
tion, party  strife  was  fully  developed  ;  and  although 
no  pledge  was  exacted  of  the  electors,  party  influ- 
ence was  sufficiently  strong  to  compel  most  of  the 
electors  to  vote  for  the  leaders  of  their  respective 
parties,  John  Adams  and  Thomas  Jefferson.  By  the 
time  that  the  fourth  election  was  held,  party  organi- 
zations were  perfected  ;  each  party  put  up  its  candi- 
dates for  President  and  Vice-President  before  the 
selection  of  the  electors,  and  the  contest  was  not 
over  the  electors  so  much  as  it  was  over  the  respec- 
tive candidates  for  President  and  Vice-President, 
which  the  two  parties  had  nominated.  Quietly  and 
as  a  matter  of  course,  apparently,  the  discretion  ot 
the  electors,  in  the  performance  of  their  duty,  van- 
ished in  the  air,  and  ever  since,  the  electors,  who, 
according  to  the  spirit  of  the  constitutional  provision, 
were  expected  to  exercise  a  wise  discretion  in  the 
selection  of  a  President  and  Vice-President,  and  who 
were  first  selected,  and  were  intended  by  the  framers 
of  the  Constitution  to  be  selected,  for  their  superior 
wisdom  and  knowledge  of  the  merits  and  qualifica- 
tions of  our  public  men,  are  called  on  to  simply 
register  the  decree  of  the  nominating  convention  of 
the  party  which  was  successful  at  the  polls.  The 
contest  is  at  an  end,  when  the  election  for  electors  is 
over.  It  is  not  necessary  to  wait  for  the  meeting  of 
the  electors  in  order  to  learn  who  would  be  the  next 


THE  ELECTORAL  COLLEGE.  49 

President  and  Vice-President.  Public  opinion  is  so 
strong  against  the  exercise  of  discretion  by  an  elec- 
tor, that  if  one  should  be  rash  enough  to  exercise  the 
discretion,  which  the  spirit  of  the  written  Constitu- 
tion requires  him  to  exercise,  he  would  be  buried 
under  a  public  obloquy,  that  would  be  without  limit, 
for  he  would  be  considered  guilty  of  a  treachery  to 
his  party,  that  would  find  condonation  nowhere. 

Now  what  is  the  real,  living  constitutional  rule  as 
to  the  selection  of  a  President  and  Vice-President  ? 
that  they  are  to  be  selected  after  deliberation  by  the 
electors,  as  being  the  men  whom  the  electors  consid- 
ered best  fitted  to  fill  the  positions ;  or  that  they 
must  be  nominated  by  parties,  and  selected  by  a 
popular  election,  indirectly  through  the  choice  of  the 
electors  of  one  party  or  of  the  other  ?  There  can  be 
no  hesitation  in  coming  to  the  conclusion  that  the 
latter  is  the  real,  living  constitutional  rule. 

But  it  must  not  be  supposed  that  the  written 
constitutional  rule  has  been  altogether  deprived  of 
its  influence  upon  popular  action.  Following  the 
fundamental  rule,  which  requires  obedience  to  the 
written  word,  until  the  power  which  enacted  it  has 
repealed  it,  the  popular  selection  of  President  and 
Vice-President  is  still  required  to  be  made  indirectly 
through  the  election  of  presidential  electors.  And 
there  is  no  better  illustration  of  the  doctrine  that 

constitutional  law  is  the  resultant  of  all  the  forces 
3 


50      THE  UNWRITTEN  CONSTITUTION. 

at  play  in  society  than  to  point  out  some  of  the 
surprising  and  unforeseen  consequences  of  the 
existing  system  of  election  of  these  officers.  The 
method  of  selecting  the  electors  was  soon  changed 
to  the  popular  election  at  the  polls,  and  the  entire 
number  of  electors,  to  which  a  State  is  entitled,  are 
now  voted  for  by  the  State  at  large.  Consequently, 
when  the  popular  decree  in  any  State  is  delivered 
in  favor  of  one  party  or  of  the  other,  all  the  chosen 
electors  of  that  State  will  be  cast  for  the  presiden- 
tial nominees  of  the  succcessful  party,  it  matters 
not  how  large  or  how  small  the  majority  may  have 
been.  In  consequence  of  the  variance  in  the  size 
of  the  majorities  of  the  different  States,  it  has  very 
frequently  happened  that  the  candidates  who  are 
elected  received  only  a  minority  of  the  votes  cast  in 
the  popular  election.  Thus  has  been  prevented  a 
full  realization  of  the  demand  for  a  popular  election 
of  presidential  candidates. 


CHAPTER    IV. 

THE   RE-ELIGIBILITY   OF  THE  PRESIDENT. 

THE  written  Constitution  of  the  United  States 

.-<i 

does  not  prescribe  any  limit  to  the  re-eligibility  of 
the  President.  But  Washington  in  his  Farewell 
Address  at  the  close  of  his  second  term  announced 
his  determination  to  decline  re-election,  on  the 
ground  that  the  safety  of  republican  institutions 
demanded  the  imposition  of  a  limit  to  the  Presi- 
dent's re-eligibility  ;  and  that  in  his  judgment  the 
limit  ought  to  be  placed  at  two  terms  of  office. 
The  popular  regrets  on  his  retirement  from  public 
life  were  mingled  with  hearty  approval  of  the 
patriotic  reasons  he  assigned  for  his  action.  Of 
the  Presidents  who  were  re-elected,  down  to  General 
Grant,  Jefferson,  Madison,  Monroe,  and  Jackson 
survived  the  expiration  of  their  second  term,  and,  in 
obedience  to  the  exalted  precedent  of  Washington, 
retired  from  the  political  field.  Their  names  were 
not  proposed  for  re-election  even  by  their  most 
enthusiastic  friends  and  admirers.  Mr.  Lincoln  was 
re-elected,  but  was  assassinated  during  his  second 
term. 

51 


52      THE  UNWRITTEN  CONSTITUTION. 

General  Grant  was  elected  to  the  presidency  in 
1868,  and  again  in  1872.  His  great  personal  popu- 
larity, notwithstanding  the  dissatisfaction  with  his 
executive  career,  created  a  demand  on  the  part  of  his 
friends  for  a  third  election.  Soundings  were  taken  of 
public  opinion  on  the  subject,  and  the  opposition  to 
his  re-election,  on  the  general  principle  enunciated  by 
Washington,  was  so  manifest  from  the  utterances  of 
the  press,  that  his  candidacy  was  abandoned  in  1876, 
and  Mr.  Hayes  became  the  Republican  nominee  and 
ultimately  the  President.  But  in  1880,  towards  the 
close  of  Mr.  Hayes'  administration,  the  friends  of 
General  Grant  pressed  his  claims  for  a  re-nomination, 
and  urged  that  the  spirit  of  the  precedent  set  by 
Washington  would  not  be  violated  by  the  re-nomina- 
tion of  Grant  in  1880,  since  he  would  not  be  suc- 
ceeding himself.  His  supporters  in  the  National 
Republican  Convention  numbered  306,  while  the 
remainder  of  the  delegates,  constituting  the  majority, 
were  divided  among  a  number  of  strong  candidates. 
After  a  prolonged  contest,  Mr.  Garfield  was  nomi- 
nated, as  the  compromise  candidate  of  those  who 
opposed  the  re-nomination  of  General  Grant.  This 
second  repulse  of  the  attempt  to  re-nominate  and 
re-elect  Grant  is  accepted  as  a  final  decision  of  the 
people  that  no  man,  however  distinguished  or  popu- 
lar, shall  hold  more  than  two  terms  of  the  presidency. 
For,  although  this  condemnation  was  not  received  at 


RE-ELIGIBILITY  OF  PRESIDENT.        53 

the  polls,  every  one  is  satisfied  that  the  opposition  to 
a  third  term  was  stronger  outside  of  the  Republican 
party,  than  it  was  within  that  party  ;  and  even  if 
Grant  had  received  the  third  nomination  at  the 
hands  of  his  party,  he  would  have  without  doubt 
been  overwhelmingly  defeated  at  the  polls. 

Of  course  this  popular  decision  cannot  be  taken  as 
pronouncing  the  election  to  the  presidency  for  a  third 
term  to  be  unconstitutional,  in  the  sense  that  if  one 
should  be  elected  for  a  third  term,  he  could  be 
prevented  from  holding  the  office  and  exercising  the 
duties  thereof,  on  the  ground  that  he  was  not  law- 
fully elected  to  the  office.  For  his  election  for  a 
third  term  would  have  to  be  taken  as  a  repeal  of  the 
constitutional  rule  previously  enunciated.  But  if  the 
object  of  constitutional  law  is  to  impose  limitations 
upon  the  people  and  upon  governmental  agencies, 
surely  the  popular  limitation  upon  the're-eligibility  of 
the  President  can  be  taken  as  a  constitutional  limita- 
tion ;  to  be  sure,  not  to  be  found  in  the  written  Con- 
stitution, but  in  that  unwritten  constitution,  whose 
flexible  rules  reflect  all  the  changes  in  public  opinion. 
~  This  is  an  example  of  a  limitation  of  the  unwritten 
constitution,  which  finds  no  authority  whatever  in 
the  written  Constitution,  and  yet  as  long  as  public 
opinion  does  not  undergo  a  change,  it  is  as  binding  as 
any  written  limitation,  and  even  more  binding  than 
some  of  the  plainest  directions  of  the  written  Con- 
stitution. 


CHAPTER  V. 

THE  INVIOLABILITY  OF  CORPORATE  CHARTERS  AND 
OF  CHARTER  RIGHTS. 

IN  Art.  I.,  sec.  10,  of  the  Constitution,  it  is  pro- 
vided that  "  no  State  shall  pass  any  law  .  .  . 
impairing  the  obligation  of  a  contract." 
VThe  history  of  the  times  reveals  a  strong  and  very- 
general  disposition  towards  repudiation  of  debts, 
prompted  without  doubt  by  the  sense  of  prostration 
under  the  heavy  load  of  indebtedness  fastened  upon 
the  people  as  a  consequence  of  their  contest  with 
England.  In  order  to  prevent  such  repudiation, 
this  clause  was  inserted  in  the  Federal  Constitution. 
I  do  not  believe  that  any  one  would  claim  for  this 
clause  any  other  object  than  the  prevention  of 
repudiation  of  public  and  private  debts  by  State 
legislation.  v/Hence,  if  the  intention  of  the  framers 
of  the  Constitution  is  to  furnish  the  true  construc- 
tion, we  must  conclude  that  nothing  would  be 
included  within  the  operation  of  this  prohibition 
but  debts  and  other  obligations  issuing  out  of 
contracts. 

54 


CHARTER  RIGHTS  INVIOLABLE. 

But  when  the  Supreme  Court  of  the  United 
States  was  called  upon,  in  the  determination  of  the 
power  of  the  New  Hampshire  legislature,  by  an 
amendment  to  its  charter,  to  change  the  composi- 
tion of  the  Board  of  Trustees  of  Dartmouth  College, 
to  construe  the  meaning  and  effect  of  this  clause,  it 
was  held,  under  the  lead  of  Chief-Justice  Marshall, 
who  delivered  the  opinion  of  the  court,  that  the 
charter  of  incorporation  of  a  private  corporation  was 
a  contract  which  could  not  be  impaired  or  altered  by 
subsequent  legislation,  unless  the  power  of  amend- 
ment was  reserved ;  and  that  the  act  of  the  legisla- 
ture of  New  Hampshire,  creating  a  new  college 
corporation,  and  directing  a  transfer  to  them  of  the 
control  of  Dartmouth  College  and  of  its  property, 
was  such  an  impairment  of  the  obligation  of  a  con- 
tract as  to  be  void  under  this  clause  of  the  Federal 
Constitution.1 

Under  the  influence  of  the  decision  of  the  court 
in  the  Dartmouth  College  case,  it  has  been  held  that 
subsequent  legislatures  are  bound  by  legislative  con- 

1  "  It  can  require  no  argument  to  prove  that  the  circumstances  of 
this  case  constitute  a  contract.  An  application  is  made  to  the  crown 
for  a  charter  to  incorporate  a  religious  and  literary  institution.  In 
the  application  it  is  stated  that  large  contributions  have  been  made 
for  the  object,  which  will  be  conferred  on  the  corporation  as  soon  as 
it  shall  be  created.  The  charter  is  granted,  and  on  its  faith  the  prop- 
erty is  conveyed.  Surely,  in  this  transaction,  every  ingredient  of  a 
complete  and  legitimate  contract  is  to  be  found." — Marshall,  Ch.  J., 
in  Dartmouth  College  Case  v.  Woodward,  4  Wheat.,  518,  627. 


56      THE  UNWRITTEN  CONSTITUTION. 

tracts  to  exempt  persons  and  corporations  from 
liability  for  taxes.  The  decisions  in  support  of  this 
proposition  are  to  be  found  in  great  numbers,  both 
in  the  State  and  Federal  reports.  It  suffices  to  refef 
here  to  only  a  few  decisions  of  the  Supreme  Court 
of  the  United  States,  in  which  we  first  find  intima^ 
tion  in  the  dissenting  opinions  of  the  future  modifi- 
cation of  the  ruling  in  the  Dartmouth  College  and 
other  early  cases.1  In  these  decisions,  the  opinion 
of  the  majority  of  the  court  seems  to  go  the  length 
of  holding  to  the  inviolability  of  any  contract  made 
by  a  legislature  which  was  not  prohibited  by  the 
Constitution,  even  though  its  performance  would  be 
injurious  to  the  commonwealth ;  while  the  dissent 
ing  opinions  rest  their  objections  to  the  decision  ol 
the  court  on  the  ground  that  the  power  of  taxation 
1  was  political,  and  that  the  legislature  cannot  bartei 
away  it  or  any  other  political  power. 

But  it  was  not  long  before  the  injurious  effect  of 
the  decision  of  the  Dartmouth  College  case  was  ap- 
preciated, and  it  became  an  almost  universal  legisla- 
tive custom  to  grant  charters  subject  to  repeal  and 
amendment.  But  that  custom  did  not  prevent  the 
decision  from  working  a  dangerous  effect  in  recog- 

1  State  Bank  of  Ohio  v.  Knoop,  16  How.,  376  ;  Ohio  Life  Ins. 
and  Trust  Co.  v.  Debolt,  16  How.,  376. 

See,  to  the  same  effect,  Billings  v.  Providence  Bank,  4  Pet.,  514 ; 
Gordon  v.  Appeal  Tax  Court,  3  How.,  133  ;  Home  of  the  Friendless 
v.  Rowse ;  Washington  University  v,  Rowse,  §  Wall.,  430,  439. 


CHARTER  RIGHTS  INVIOLABLE.        57 

nizing  the  inviolability  of  charter  privileges.  The 
dangerous  consequences  of  this  doctrine  were  exem- 
plified by  the  facts  of  the  case  of  Charles  River 
Bridge  Company  v.  Warren  River  Bridge  Company, 
II  Pet.,  536.  The  Charles  River  Bridge  Company 
had  been  authorized  to  establish  and  maintain  a 
bridge  across  the  Charles  River,  and  to  charge  toll 
for  its  use  for  a  stated  period,  at  the  lapse  of  which 
the  bridge  was  to  become  public.  This  bridge  was 
constructed  in  pursuance  of  this  grant,  and  after  it 
had  been  in  use  for  some  time,  but  before  the  expira- 
tion of  the  period  for  which  the  Charles  River 
Bridge  Company  had  been  granted  the  right  to 
charge  toll,  the  legislature  authorized  the  construc- 
tion of  a  second  bridge,  connecting  the  same  places, 
and  situated  within  a  short  distance  of  the  first 
bridge.  It  is  plain  that  the  construction  of  the 
second  bridge  could  under  those  circumstances  have 
had  but  one  effect  upon  the  franchise  of  the  Charles 
River  Bridge  Company — viz.,  an  immediate  serious 
diminution  in  the  profits  of  that  company,  and  an 
ultimate  destruction  of  the  franchise  in  consequence 
of  the  second  bridge  being  opened  to  the  public 
without  charge  at  an  earlier  day.  It  had  already 
become  public  when  the  decision  in  the  case  was 
pronounced  by  the  Supreme  Court  of  the  United 
States.  The  public  pressure  in  favor  of  the  second 
bridge  was  so  great  that,  notwithstanding  it  was  a 


58      THE  UNWRITTEN  CONSl^ITUTION. 

plain  case  of  impairment  of  the  charter  rights  of  the 
Charles  River  Bridge  Company,  the  court,  under  the 
lead  of  Chief-Justice  Taney,  gave  judgment  for  the 
Warren  River  Bridge  Company,  resting  its  decision 
on  the  technical  ground  that  all  grants  of  the  State 
must  be  construed  favorably  to  the  State,  and 
strictly  against  the  grantee ;  that  the  grant  of  a 
franchise  will  not  be  considered  as  an  exclusive 
monopoly,  unless  expressly  declared  to  be  so,  and 
that  the  incidental  injury  proceeding  from  the  grant 
of  a  second  franchise  would  not  be,  in  the  constitu- 
tional sense,  an  impairment  of  the  obligation  of  a 
contract.  Public  opinion  was  not  yet  ripe  for  an 
open  repudiation  of  the  doctrine  of  the  Dartmouth 
College  case  ;  and  hence  the  end  was  attained  by 
the  employment  of  a  technicality.1 

But  from  this  time  to  the  present  the  power  of 
private  corporations  has  increased  rapidly,  every  ad- 
vance in  science  and  industry  tending  to  develop  the 
proportions  and  the  strength  of  corporations,  until 
there  is  a  general  popular  fear  of  an  usurpation  by 
them  of  control  of  the  government.  The  popular  de- 
mand for  a  control  of  railroad  and  other  corporations 
became  so  great  and  so  urgent,  that  it  was  impos- 
sible for  Congress  or  the  courts  to  ignore  it.  Laws 

1  Charles  River  Bridge  Co.  v.  Warren  River  Bridge  Co.,  n  Pet., 
536.  See,  to  same  effect,  Richmond  R.R.  Co.  v.  Louisa.  R.R.  Co., 
13  How.,  71. 


CHARTER  RIGHTS  INVIOLABLE.         59 

were  passed  subjecting  railroads  to  all  sorts  of  regu- 
lations, and  finally  they  were  placed  in  many  States 
under  the  control  of  a  railroad  commission.  On  the 
general  principles,  that  corporations,  like  natural 
persons,  were  subject  to  the  police  power  of  the 
State,  and  that  there  was  no  impairment  of  the 
obligation  of  a  contract,  if  a  railroad  corporation 
were  subjected  to  reasonable  special  police  regula- 
tions, although  these  regulations  increased  the  lia- 
bilities of  the  corporations  and  diminished  their 
income,  it  was  held  that  this  police  power  could 
not  be  bartered  away  by  the  legislature.1  And  so, 
also,  has  it  been  held  that  there  is  no  violation  of  the 
constitutional  prohibition  of  impairment  of  the 
obligation  of  a  contract  where  corporations  are  sub- 
jected to  a  regulation  of  their  charges  by  State 
officers  or  commissions.  This  was  held  to  be  only 
one  phase  of  the  police  power  of  the  State,  and  that 
the  charters  were  issued  subject  to  the  exercise  of 
the  power.2 

So  far  in  the  course  of  this  constitutional  develop- 
ment, it  has  been  possible  for  the  courts,  by  the  aid 
of  technicalities  and  refinements  of  verbal  meanings, 

1  Thorpe  v.  Rutland,  27  Vt.,  140;  Railroad  Co.  v.  Fuller,  17 
Wall.,  560  ;  Chicago,  etc.,  R.R.  Co.  v.  Haggerty,  67  111.,  113  ;  Haas 
v.  Railroad  Co. ,  141  Wis. ,  44 ;  Pennsylvania  R.  R.  Co.  v.  Lewis,  79 
Pa.  St.,  33. 

*  Chicago,  etc.,  R.R.  Co.  v.  Iowa,  94  U.  S.,  115  ;  Peck  v.  Chicago, 
etc.,  R.R.  Co.,  94  U.  S.,  164,  176  ;  Union  Pac.  Ry.  v.  United  States, 
99  U.  S.,  700. 


60      THE  UNWRITTEN  CONSTITUTION. 

to  claim  that  there  has  been  no  repudiation  of  the 
Dartmouth  College  case.  It  is  true  that  there  is  not 
the  slightest  hint,  in  the  opinion  of  Chief-Justice 
Marshall,  of  the  subjection  of  the  corporate  rights 
to  an  indefinable  and  elastic  power,  called  police 
power,  in  the  exercise  of  which  it  is  possible  for  the 
interests  of  the  corporation  to  be  jeopardized.  But 
that  can  be  explained  away  by  holding  that  the  facts 
of  the  Dartmouth  College  case  did  not  require  any 
acknowledgment  of  the  police  power  of  the  govern- 
ment. There  are,  however,  two  later  cases,  which 
cannot  be  substantially  reconciled  with  the  position 
of  the  court  in  the  Dartmouth  College  case.  I  refer 
to  the  cases  of  Stone  v.  Mississippi,  101  U.  S.,  814, 
and  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.,  659.  In 
the  first  case,  Stone  v.  Mississippi,  the  question  arose 
on  a  repeal  of  the  charter  of  a  lottery  company  by  a 
x  new  provision  of  the  State  constitution.  The  court 
held  that  the  abolition  of  the  lottery  company  was 
nothing  more  than  the  exercise  of  the  police  power, 
and  did  not  offend  the  constitutional  provision  under 
discussion.  After  maintaining  that "  the  doctrines  of 
Trustees  of  Dartmouth  College  v.  Woodward  (4 
Wheat.,  518),  announced  by  this  court  more  than 
sixty  years  ago,  have  become  so  imbedded  in  the 
jurisprudence  of  the  United  States,  as  to  make  them 
to  all  intents  and  purposes  a  part  of  the  Constitution 
itself,  "  Chief-Justice  Waite  proceeds : 


CHARTER  RIGHTS  INVIOLABLE.         61 

• 

"The  contracts  which  the  Constitution  protects  are  those  that 
relate  to  property  rights,  not  governmental,.  It  is  not  always  easy  to 
tell  on  which  side  of  the  line  which  separates  governmental  from 
property  rights  a  particular  case  is  to  be  put,  but  in  respect  to  lotteries 
there  can  be  no  difficulty.  They  are  not,  in  the  legal  acceptation  of 
the  term  malain  se,  but,  as  we  have  just  seen,  may  properly  be  made 
mala prohibita.  They  are  a  species  of  gambling,  and  wrong  in  their 
influences.  They  disturb  the  checks  and  balances  of  a  well-ordered 
community.  Society  built  on  such  a  foundation  would  almost  of 
necessity  bring  forth  a  population  of  speculators  and  gamblers,  living 
on  the  expectation  of  what  '  by  the  casting  of  lots,  or  by  lot,  chance  or 
otherwise,' might  be  'awarded'  to  them  from  the  accumulation  of 
others.  Certainly  the  right  to  suppress  them  is  governmental,  to  be 
exercised  at  all  times  by  those  in  power,  at  their  discretion.  Any  one, 
therefore,  who  accepts  a  lottery  charter  does  so  with  the  implied 
understanding  that  the  people,  in  their  sovereign  capacity,  and 
through  their  properly  constituted  agencies,  may  resume  it  at  any 
time  when  the  public  good  shall  require,  whether  it  be  paid  for  or 
not.  All  that  one  can  get  by  such  a  charter  is  a  suspension  of  certain 
governmental  rights  in  his  favor,  subject  to  withdrawal  at  will.  He 
has  in  legal  effect  nothing  more  than  a  license  to  enjoy  the  privilege 
on  the  terms  named  for  the  specified  time,  unless  it  be  sooner  abro- 
gated by  the  sovereign  power  of  the  State.  It  is  a  permit,  good 
as  against  existing  laws,  but  subject  to  future  legislative  and  constitu- 
tional control  or  withdrawal."  ! 

In  answer  to  the  criticism  that  the  rulings  of  the 
court,  that  legislative  contracts  of  exemptions  from 
taxation  are  inviolable  by  subsequent  legislatures, 
would  require  the  court  to  pronounce  this  action  of 
the  Mississippi  Constitutional  Convention  to  be  un- 
constitutional, the  Chief-Justice  says: 

-r 

"  We  have  held,  not  however  without  strong  opposition  at  times, 

that  this  clause  protected  a  corporation  in  its  charter  exemptions 
from  taxation.  While  taxation  is  in  general  necessary  for  the  sup- 
port of  government,  it  is  not  part  of  the  government  itself.  Govern- 

1  Stone  v.  Mississippi,  101  U.  S.,  820,  821. 


62      THE  UNWRITTEN  CONSTITUTION. 

ment  was  not  organized  for  the  purposes  of  taxation,  but  taxation 
may  be  necessary  for  the  purposes  of  government.  As  such,  taxation 
becomes  an  incident  to  the  exercise  of  the  legitimate  functions  of 
government,  but  nothing  more.  No  government  dependent  on  taxa- 
tion for  support  can  bargain  away  its  whole  power  of  taxation,  for 
that  would  be  substantial  abdication.  All  that  has  been  determined 
thus  far  is,  that  for  a  consideration  it  may,  in  the  exercise  of  a 
reasonable  discretion,  and  for  the  public  good,  surrender  a  part  of  its 
powers  in  this  particular."  ! 

In  the  case  of  the  Fertilizing  Company  v.  Hyde 
Park,8  the  facts  were  these :  The  plaintiff  corpora- 
tion was  granted  the  privilege  of  establishing  a  fac- 
tory for  the  conversion  of  offal  into  fertilizers 
within  a  certain  district  in  the  vicinity  of  Chicago ; 
and  that  this  privilege  should  be  enjoyed  undis- 
turbed for  fifty  years.  The  city  of  Hyde  Park 
sprang  up  around  the  fertilizing  factory,  after  the 
manner  of  western  towns,  and  of  course  the  inhabi- 
tants complained  of  the  factory  as  a  nuisance.  The 
legislature  of  Illinois  directed  the  closing  up  or 
removal  of  the  factory  within  two  years.  This 
legislative  action  was  taken  before  the  expiration  of 
the  period  for  which  the  privilege  of  maintaining 
the  factory  in  that  locality  had  been  granted.  On 
an  appeal  to  the  courts  it  was  finally  determined 
by  the  Supreme  Court  of  the  United  States,  that 
this  legislative  prohibition  of  the  continuance  of 
the  factory  in  the  same  place  was  not  an  im- 

1  Stone  v.  Miss.,  101,  W.  S.  820  ;  Ch.-J.  Waite. 
8  97  U.  S.,  659. 


CHARTER  RIGHTS  INVIOLABLE.        63 

,  pairment  of  the  obligation  of  the  contract  created 
by  the  grant  of  the  privilege,  since  it  was  but  the 
ordinary  exercise  of  police-power,  subject  to  which 
all  legislative  grants  are  made.  Mr.  Justice  Miller 
concurred  in  the  judgment  on  the  ground  that  the 
legislature  could  compel  the  removal  of  the  factory 
to  a  less  objectionable  location,  since  the  contract  of 
the  legislature  with  the  company  did  not  specify 
any  particular  location  in  which  to  establish  the 
factory.  But  the  Justice  took  exception  to  the 
position  taken  by  the  majority  of  the  court  in 
the  opinion  of  Justice  Swayne,  saying : 

"It  is  said  that  such  contract  as  may  be  found  in  the  present 
case  was  made  subject  to  the  police  power  of  the  legislature  over  the 
class  of  subjects  to  which  it  relates.  The  extent  to  which  this  is  true 
depends  upon  the  specific  character  of  the  contract  and  not  upon  the 
general  doctrine.  This  court  has  repeatedly  decided  that  a  State 
may  by  contract  bargain  away  her  right  of  taxation.  I  have  not  con- 
curred in  that  view,  but  it  is  the  settled  law  of  this  court.  If  a  State 
may  make  a  contract  on  that  subject  which  it  cannot  abrogate  or 
repeal,  it  may,  with  far  more  reason,  make  a  contract  for  a  limited 
time  for  the  removal  of  a  continuing  nuisance  from  a  populous  city. 

"  The  nuisance  in  the  case  before  us  was  the  very  subject-matter 
of  the  contract.  The  consideration  of  the  contract  was  that  the  com- 
pany might  and  should  do  certain  things  which  affected  the  health 
and  comfort  of  the  community ;  and  the  State  can  no  more  impair 
the  obligation  of  that  contract  than  it  can  resume  the  right  of  taxa- 
tion which  it  has  on  valid  consideration  agreed  not  to  exercise, 
because  in  either  case  the  wisdom  of  its  legislation  has  become 
doubtful. 

' '  If  the  good  of  the  entire  community  requires  the  destruction  of 
the  company's  rights  under  this  contract,  let  the  entire  community 
pay  therefore  by  condemning  the  same  for  public  use."  J 

1  Pp.  670,  671. 


64      THE  UNWRITTEN  CONSTITUTION. 

Mr.  Justice  Strong  dissented  from  the  judgment 
of  the  court,  criticising  the  ground  taken  by  Mr. 
Justice  Miller  as  well  as  that  taken  by  the  majority 
of  the  court : 

"  It  has  been  suggested  that  the  charter  did  not  precisely  designate 
the  place  where  the  rendering  works  might  be  established,  and  to 
which  the  city  offal  might  be  carried  ;  and  hence  it  is  argued  that, 
notwithstanding  the  contract,  it  is  within  the  power  of  the  legislature 
to  order  the  removal  of  the  works  to  another  locality,  and  that  this 
may  be  done  mediately  by  the  municipal  corporation  empowered  by 
the  State..  The  inference  I  emphatically  deny.  It  is  true  the  char- 
ter empowered  the  company  to  select  a  location  within  certain  geo- 
graphical limits,  and  did  not  itself  define  the  exact  point ;  but  when 
under  this  power  a  location  was  made  by  the  company  and  hundreds 
of  thousands  of  dollars  were  expended  upon  it,  it  was  beyond  the 
power  of  the  other  contracting  party  to  change  it.  The  location  was 
lawful  when  made,  and  if  lawful  then,  it  cannot  be  unlawful  after- 
wards. ...  It  must  be,  therefore,  that  the  location  of  the  com- 
pany's works  at  the  places  where  they  were  located,  recognized  as  a 
proper  location  by  the  act  of  the  legislature  of  1869,  is  one  which 
cannot  be  changed  without  the  consent  of  both  parties  to  the 
contract."  l 

"  That  the  charter  granted  by  the  legislature,  March  8,  1867, 
and  accepted  by  the  company,  is  a  contract  protected  by  the  Consti- 
tution of  the  United  States,  cannot  be  denied,  in  the  face  of  the 
Dartmouth  College  v.  Woodward  (4  Wheat.,  518),  and  the  long  line  of 
decisions  that  have  followed  in  its  wake  and  reasserted  its  doctrines. 
And  if  the  company  holds  its  rights  under  and  by  force  of  the  con- 
tract, those  rights  cannot  be  taken  away  or  impaired,  either  directly  or 
indirectly,  by  any  subsequent  legislation."  2 

It  has  also  been  held  by  the  same  court  that  there 
is  no  impairment  of  the  obligation  of  the  contract 

made  with  a  brewing  or  distilling  corporation,  that 
\ 

1  Page  677. 

3  Strong,  J.,  p.  672. 


CHARTER  RIGHTS  INVIOLABLE.        65 

its  business  is  subsequently  destroyed,  and  its  prop- 
erty rendered  valueless,  by  a  general  prohibition  of 
the  manufacture  and  sale  of  intoxicating  liquors.1 

It  is  impossible  for  one  to  read  between  the  lines 
of  these  decisions,  and  to  compare  the  facts  of  the 
cases,  without  reaching  the  conclusion  that  there  has 
been  a  decided  shifting  of  the  position  of  the  court 
since  the  case  of  Dartmouth  College  v.  Woodward. 
In  that  case,  the  Supreme  Court  prohibited  a  simple 
change  in  the  personnel  of  the  college  board  of  trus- 
tees, although  this  change  would  not  deprive  the 
real  beneficiaries,  the  students,  of  any  advantage  de- 
rivable under  the  old  charter.  In  these  later  deci- 
sions, the  court  has  permitted  the  practical  destruc- 
tion of  corporate  property  and  privileges,  guaranteed 
by  legislative  grant,  on  the  ground  that  corporations, 
as  well  as  natural  persons,  are  subject  to  the  control 
of  the  police  power  of  the  State.  The  welfare  of  the 
communities  required  these  interferences  with  prop- 
erty and  franchises,  since  their  enjoyment  threatened 
or  actually  inflicted  evil.  But  the  same  reason  might 
have  been  urged  in  favor  of  the  New  Hampshire  in- 
terference with  Dartmouth  College.  Nowhere  can 
one  man  exert  a  more  powerful  influence  over  the 
minds  and  hearts  of  others  than  in  the  professor's 
chair.  The  legislature  may  have  had  reason  to  fear  that 

1  Beer  Company  v.  Massachusetts,  97  U.  S.,  25  ;   Mugler  v.  Kan- 
sas, 123  U.  S.,  623 ;  Powell  v.  Pennsylvania,  127  U.  S.,  678. 
5 


66      THE  UNWRITTEN  CONSTITUTION. 

the  presence  of  so  many  tory  representatives  on  the 
old  board  of  trustees  of  the  college  would  exert  a 
baneful  influence  upon  the  minds  of  the  youths  who 
would  attend  the  college.  If  they  truly  thought  this 
danger  was  imminent,  they  would  have  been  justified 
in  stamping  this  evil  out  of  existence.  Other  nations 
have  for  the  same  reason  banished  a  hostile  popula- 
tion, or  expropriated  their  land. 

The  facts  of  these  cases  do  not  vary  materially  : 
the  difference  in  the  opinions  cannot  be  accounted 
for  on  this  ground.  The  contradiction  arises  out  of 
a  change  in  public  opinion,  and  a  consequent  change 
in  the  constitutional  rule.  Nothing  but  a  profound 
respect  and  reverence  for  the  great  Chief-Justice  who 
penned  the  decision  in  the  Dartmouth  College  case 
has  compelled  this  show  of  indorsement  of  its  prin- 
ciples in  the  later  decisions  of  the  Supreme  Court, 
while  the  rule  is  substantially  modified,  if  not  abro- 
gated altogether. 


CHAPTER  VI. 

THE  DOCTRINE  OF  NATURAL  RIGHTS  IN  AMERICAN 
CONSTITUTIONAL  LAW. 

^PERHAPS  no  product  of  the  Roman  law  has  exerted 
so  potent  an  influence  upon  the  development  of 
modern  jurisprudence  as  the  Roman  doctrine  of  jus 
naturaleJ^  When  Rome  was  in  its  infancy,  the 
national  dominion  was  in  its  character  personal,  and 
not  territorial;  i.e.,  the  governmental  power  was  ex- 
erted over  the  individuals  who  composed  the  Roman 
people,  and  not  over  the  country  which  they  occu- 
pied. The  tie  of  nationality  bound  the  Romans  to 
each  other,  and  not  to  the  land  ;  hence  the  early  Ro- 
man law  did  not  take  into  consideration  strangers 
who  might  be  resident  within  the  Roman  territory. 
The  jus  civile,  the  name  given  to  the  early  Roman 
law,  was  designed  to  determine  the  legal  relations 
and  rights  of  Roman  citizens  only,  and  did  not  take 
cognizance  even  of  the  claims  of  Roman  citizens 
against  these  resident  strangers.  The  stranger  had 
no  right  which  the  Roman  was  obliged  to  respect, 
nor  was  he  under  any  obligations  to  the  Romans 

67 


68      THE  UNWRITTEN  CONSTITUTION. 

with  whom  he  may  have  had  dealings.  But  this 
anomalous  state  of  affairs  could  not  last  long.  With 
the  increase  of  Rome's  international  intercourse,  the 
demand  for  rules  of  law,  which  could  apply  to  trans- 
actions with  foreigners,  became  greater  and  greater 
until,  finally,  the  Roman  government  provided  a 
special  judge  for  the  hearing  of  all  causes  of  actions 
arising  between  strangers  and  between  strangers  and 
Romans.  The  jus  civile,  like  the  beginnings  of  all 
systems  of  jurisprudence,  was  extremely  technical 
and  symbolical ;  and  to  apply  this  law  in  all  its 
strictness  to  the  adjudication  of  the  rights  of  stran- 
gers, who  could  not  be  presumed  to  know  any  thing 
of  this  law,  would  have  resulted  often  in  the  inflic- 
tion of  wrong,  rather  than  the  dispensation  of  justice. 
Instead  of  deciding  these  causes  of  action  according 
to  the  jus  civile,  the  Roman  praetor,  who  was  given 
charge  of  them,  rendered  his  decisions  in  accordance 
with  those  rules  of  law  which  obtained  generally 
among  all  nations.  The  law,  thus  developed  along- 
side of  the  jus  civile,  became  known  as  the  jus  gen- 
tium, or  the  law  of  nations. 

On  account  of  the  general  and  almost  universal 
character  of  its  rules  of  conduct,  the  jus  gentium 
became  much  less  technical  and  more  rational  than 
the  jus  Civile ;  and  when  the  time  arrived  for  the 
transformation  of  Roman  law  from  its  crude  em- 
pirical character  into  a  science,  the  jus  gentium  was 


NATURAL  RIGHTS.  69 

found  to  be  of  far  greater  importance  than  the  jus 
civile,  although  originally  the  former  was  intended 
to  play  a  subordinate  part  in  the  development  of 
the  system. 

About  the  same  time  the  Roman  lawyers,  to- 
gether with  other  serious  and  thoughtful  men  of 
the  day,  revolting  from  the  prevalent  profligacy, 
became  infatuated  with  the  stoic  philosophy,  and 
drew  from  that  philosophy  the  Greek  idea  of  natural 
law.  Instead  of  the  jus  gentium  being  received  as  a 
body  of  rules  found  to  be  generally  enforced  by  all 
nations,  it  became,  in  its  reduction  to  the  forms  of  a 
science,  the  jus  naturale,  an  ideal  law  which  one  in 
his  imagination  would  conceive  to  be  in  force  in  a 
state  of  perfect  nature.  Jus  naturale  is  the  scientific, 
idealized  form  of  the  jus  gentium. 

It  is  impossible  for  one  to  suppose  that  the 
accomplished  Roman  jurists  really  believed  that  by 
their  labors  they  were  taking  the  world  back  to  the 
legal  relations  of  the  aboriginal  peoples,  who  knew 
no  state,  no  legislator,  and  who  were  supposed  to 
have  lived  in  a  state  of  nature.  It  is  conceivable 
that  poets  may  imagine  the  perfection  of  legal  rela- 
tions under  such  a  natural  law  ;  but  the  hard  com- 
mon-sense of  the  Roman  lawyer,  would  without  doubt 
have  revolted  at  the  thought  of  finding  the  perfection 
of  legal  reasoning  in  the  chaos  which  precedes  organ- 
ized national  life.  In  the  same  way  that  these  jurists 


70      THE  UNWRITTEN  CONSTITUTION. 

yearned  for  a  release  of  the  world  from  its  habits  of 
profligacy  and  gross  indulgence,  by  the  adoption  of 
simpler  and  more  rational  modes  of  living,  so  did 
they  strive  to  strip  the  law  of  its  barbarous  and 
gross  technicalities,  and  make  it  approximate  the 
perfection  of  reason,  by  reducing  it  to  the  compara- 
tive simplicity  of  form,  which  one  may  well  conceive 
to  be  the  character  of  a  natural  law,  enforced  among 
the  most  rational,  the  most  highly  developed  people. 
It  was  the  simplicity  of  form,  rather  than  the 
rational  content  of  the  law,  as  projected  by  them, 
and  its  development  without  the  active  interference 
of  the  state,  which  made  them  compare  it  with  law 
in  a  state  of  nature. 

But  the  cruder  form  of  this  doctrine  obtained  a 
stronghold  upon  the  legal  thought  of  the  middle 
ages,  and  men  really  believed  that  we  had  fallen 
from  a  more  glorious  state  of  nature,  and  that  were 
we  able  to  retrace  the  steps  taken  in  the  progress  of 
the  world,  we  could  regain  that  natural  state,  where 
law  was  the  perfection  of  reason,  and  barbarous 
technicalities  and  injustice  were  unknown.  The 
doctrine  reaches  the  extreme  limits  of  absurdity  in 
the  social  contract,  in  the  claim  that  all  govern- 
mental authority,  and  hence  the  binding  force  of 
law,  is.  derived  from  the  agreement  or  consent  of  the 
governed ;  and  that  all  men  are  possessed  of  certain 
natural  rights,  rights  enjoyed  by  them  in  a  state  of 


NATURAL  RIGHTS.  71 

nature,  and  which  no  government  can  rightfully  in- 
fringe or  take  away.  This  doctrine  of  a  social  con- 
tract has  dominated  modern  thought  in  a  more  or 
less  modified  form  to  the  present  day,  and  even  now 
resists  tenaciously  the  heavy  onslaughts  made  upon 
it  by  jurists  of  the  Bentham-Austin  school. 

In  the  reaction  from  the  all-powerful  influence  of 
this  doctrine  of  a  social  contract,  and  of  absolute 
natural  rights,  the  pendulum  of  modern  scientific 
thought  has  swung  too  far  in  the  opposite  direction. 
A  large  and  influential  school  of  English  jurists, 
whose  chief  apostles  and  expounders  have  been  Ben- 
tham  and  Austin,  repudiate  entirely  the  Roman 
doctrine  of  jus  naturale.  Defining  law  to  be  the 
command  of  a  sovereign  to  a  subject,  and  recognizing 
the  will  of  the  sovereign  to  be  the  only  standard  of 
right,  they  push  their  doctrine  to  the  extreme  of 
denying  that  the  consideration  of  any  so-called  natu- 
ral rights  could  properly  fall  within  the  province  of 
jurisprudence,  and  confining  it  strictly  to  the  realm 
of  ethical  questions. 

Technically,  this  criticismjof  the  Roman  doctrine 
jus  naturale  is  sound  ;  for  there  can  be  no  legal  right 
which  is  not  recognized  or  created  by  the  sovereign 
power  of  the  state.  The  commands  of  the  sover- 
eign are  always  law,  and  hence  legally  right,  it 
matters  not  how  many  so-called  natural  rights  are 
thereby  violated.  But  the  error  of  the  Austinites, 


THE  UNWRITTEN  CONSTITUTION. 


in  this  case,  as  in  the  general  question  of  the  origin 
and  development  of  law,1  lies  in  failing  to  take  note 
of  the  fact  that  popular  notions  of  rights,  however 
wrong  they  may  be  from  a  scientific  standpoint,  do 
become  incorporated  into,  and  exert  an  influence 
upon,  the  development  of  the  actual  law.  Every  legal 
principle  is  the  resultant  of  some  two  or  more  social 
forces  ;  and  popular  notions  are  usually  more  power- 
ful than  physical  facts.  So  far,  therefore,  as  the 
doctrine  of  natural  rights  has  moulded  the  principles 
of  the  law,  a  recognition  of  the  doctrine  will  be 
necessary  to  a  comprehension  of  the  law ;  and  to 
that  extent  would  a  study  of  the  doctrine  of  natural 
rights  fall  within  the  province  of  jurisprudence. 

So  far  as  the  jus  naturale  of  the  Romans  became 
a  part  of  the  existing  Roman  law,  it  belonged  to  the 
province  of  jurisprudence.  The  adoption  and  pro- 
mulgation of  its  rules  by  the  proper  authorities  simply 
indicated  that  they  were  habitually  and  spontane- 
ously obeyed  by  the  masses,  and  needed  only  to  be 
enforced  against  the  rebellious  minority.  But  so  far 
as  the  rules  of  the  jus  naturale  did  not  meet  with 
popular  obedience,  whose  indorsement  was  advocated 
only  by  the  more  advanced  thinkers,  because  they 
approximated  their  highest  ethical  conceptions,  we 
must?  concede  that  the  jus  naturale  has  no  place  in 
the  province  of  jurisprudence.  When,  therefore, 

1  See  Chapter  I. 


NATURAL  RIGHTS.  73 

a  modern  writer  attacks  an  existing  rule  of  law,  on 
the  ground  that  it  offends  the  principles  of  natural  law, 
or  violates  some  natural  right,  the  statement  would 
have  been  the  same  if  he  said  that  the  law  was  ethically 
indefensible.  In  the  province  of  jurisprudence  there 
is,  therefore.,-  no  room  for  the  assertion  of  natural 
rights,  except  so  far  as  they  are  recognized  and  pro- 
tected by  the  existing  law.  The  same  difference  exists 
between  natural  rights  and  legal  rights,  as  was  recog- 
nized as  existing  between  the  morality  of  law  and 
the  morality  of  ethics.1 

But  even  as  a  part  of  ethics,  there  is  no  fixed,  in- 
variable list  of  natural  rights.  *^hese  natural  rights 
vary  and  their  characters  change  with  the  develop- 
ment of  the  ethical  conceptions  of  the  people,  the 
development  of  the  legal  rights  keeping  pace  with, 
and  following  behind,  the  development  of  natural  or 
ethical  rights.  Indeed,  the  natural  rights  with  which 
all  men  are  proclaimed  in  the  American  Declaration 
of  Independence  to  be  endowed  by  their  Creator, 
have  been  developed  within  the  historical  memory 
of  man.  /xPersonal  rights  of  all  kinds  were  unknown 
in  the  dawn  of  history.  Tn  all  the  Aryan  races  the 
individual  was  originally  deemed  to  be  possessed  of 
no  rights.  The  family  was  the  legal  unit,  and  the 
patriarch,  as  the  representative  of  the  family,  auto- 
cratically determined  the  fate  and  destiny  of  his 

1  See  Chapter  I. 


74      THE  UNWRITTEN  CONSTITUTION. 

wife,  children,  and  slaves.  His  despotic  will  knew 
no  limits  but  those  imposed  by  the  softening  influ- 
ence of  love.  There  was  no  legal  or  moral  limit  to 
his  power.  Disobedience  to  the  husband,  father,  or 
master  was  declared  to  be  the  gravest  crime,  and 
subjected  the  offender  to  the  possible  loss  of  his  life. 
As  long  as  the  patriarch  lived  the  members  of  his 
family  remained  under  his  power ;  when  a  woman 
married  she  passed  from  the  dominion  of  her  family 
patriarch  to  that  of  her  husband's  patriarch,  and  of 
course  the  children  of  the  marriage  were  under  like 
subjection.  The  patriarch  also  had  the  absolute 
disposition  of  all  the  property  acquired  by  the  differ- 
ent members  of  the  family. 

A  little  later,  a  change  in  the  law  was  demanded 
by  the  prevalent  sense  of  right,  so  far  as  to  enable 
sons,  upon  their  arrival  at  a  certain  age,  to  acquire 
an  independent  legal  position,  and  to  possess  and 
enjoy  the  rights  of  life,  liberty,  and  property,  free 
from  the  interference  of  the  father.  But  females  of 
all  ages  remained  under  the  dominion  of  their 
fathers  until  their  marriage,  when  they  passed  un- 
der the  dominion  of  their  husbands.  All  persons 
under  age  were  held  to  be  incapable  of  having  any 
independent  legal  rights. 

Latf  r  on,  single  women  were  placed  upon  the  same 
footing  with  men,  and  married  women  and  minors 
were  conceded  independent  rights  of  property ;  but 


NATURAL  RIGHTS.  75 

it  was  still  considered  a  natural  right  for  the  father 
to  restrain  and  control  the  actions  of  his  minor 
child,  and  the  husband  those  of  his  wife.  This  was 
the  condition  of  the  law  of  domestic  relations  at  the 
beginning  of  the  present  century.  Since  then  there 
has  been  a  gradual  emancipation  of  the  wife  from 
the  control  of  the  husband  in  this  country,  in  the 
more  advanced  States  the  married  woman  having 
the  same  freedom  from  restraint  as  the  single 
woman.  We  are  also  on  the  eve  of  witnessing  the 
abrogation  of  the  supposed  natural  right  of  the 
parent  to  control  the  actions  of  his  minor  child,  and 
to  educate  it  spiritually  and  intellectually  as  he 
should  see  fit.  Instead  of  recognizing  in  the  parent 
a  right  to  exercise  this  control  over  the  minor  child, 
the  latest  judicial  opinion  treats  this  control  of  the 
child  as  a  trust,  reposed  by  the  State  in  the  parent 
for  the  benefit  of  the  child  ;  and  that  whenever  the 
State  should  determine  that  the  trust  is  not  being 
properly  executed,  or  that  the  public  interests  or 
the  interests  of  the  child  require  the  execution 
of  the  trust  by  the  State  itself,  there  is  no  limit 
to  the  power  of  the  State  to  interfere  with  the 
parental  control.  The  confinement  of  minor  chil- 
dren in  reformatory  schools,  and  compulsory  educa- 
tion by  the  State,  to  the  exclusion  of  private 
education,  can  alone  be  justified  by  a  denial  of  any 
right  in  the  parent  to  determine  the  destiny  of  his 


76      THE  UNWRITTEN  CONSTITUTION. 

child.1  Thus  we  see,  according  to  the  earliest  law 
of  the  Aryan  races,  the  individual  had  no  legal 
standing,  and  was  the  subject  of  no  rights,  unless 
he  happened  to  be  the  head  of  a  family.  In  this 
representative  capacity,  he  was  the  autocratic  pos- 
sessor of  all  the  rights  of  the  family.  At  the 
present  time,  each  individual  stands  free  before  the 
law,  the  independent  possessor  of  his  own  rights, 
except  when  tender  age  or  mental  imbecility  re- 
quire him  for  his  own  good  to  be  placed  under 
tutelage. 

There  is,  therefore,  no  such  thing,  even  in  ethics, 
as  an  absolute,  inalienable,  natural  right.  The  so- 
called  natural  rights  depend  upon,  and  vary  with, 
the  legal  and  ethical  conceptions  of  the  people.  As 
presently  developed,  the  doctrine  of  natural  rights 
may  be  tersely  stated  to  be  a  freedom  from  all  legal 
restraint  that  is  not  needed  to  prevent  injury  to 
others;  a  right  to  do  any  thing  that  does  not 
involve  a  trespass  or  injury  to  others ;  or,  to  em- 
ploy the  language  of  Herbert  SpencerH:  "  Every 
man  has  freedom  to  do  aught  that  he  wills,  provided 
he  infringes  not  the  equal  freedom  of  any  other 
man."  The  prohibitory  operation  of  the  law  must 
be  confined  to  the  enforcement  of  the  legal  maxim, 
sic  utere  tuo,  ut  alienum  non  ladas.  This  right  of 

1  See  Tiedeman's  "Limitations  of  Police  Power,"  §§  165,  166, 
i66a,  167. 
8  "Social  Statics, "p.  121. 


NATURAL  RIGHTS.  77 

freedom  from  needless  restraint  has  been  guaranteed 
to  the  British  subject  by  the  Magna  Charta,  the 
Petition  of  Right,  and  the  Bill  of  Rights.  And 
while  these  several  state  papers,  which  in  the  main 
constitute  the  English  Constitution,  are  in  fact  acts 
of  Parliament,  repealable  by  any  Parliament,  yet 
their  contents  are  so  highly  esteemed  by  public 
opinion  that  they  have  been  raised  above  ordinary 
enactments,  and  practically  operate  to  restrain  the 
power  of  Parliament.  An  act  of  Parliament,  which 
would  flagrantly  violate  the  fundamental  principles 
of  the  Magna  Charta,  could  not  be  enforced,  and 
the  political  future  of  the  party  and  persons  re- 
sponsible for  its  enactment  would  be  irretrievably 
damaged.  But  there  is  no  binding  force  in  the 
prohibitions  of  the  Magna  Charta,  except  so  far  as 
they  are  now  voiced  by  public  sentiment.  The 
solemn  enactment  of  this  celebrated  statute  un- 
doubtedly does  check  the  growth  of  public  sen- 
timent away  from  its  principles ;  but  if  an  act  of 
Parliament  should  be  passed  in  accordance  with 
some  great  public  demand,  the  fact  that  it  violated 
these  principles  would  not  prevent  its  enforcement 
by  the  courts.  Mr.  Austin,  therefore,  is  justified  in 
saying  that  English  constitutional  law  belongs  to 
the  province  of  ethics,  and  cannot  be  called  a  branch 
of  jurisprudence. 

These  same  declarations   of  natural  rights  have 


78     THE  UNWRITTEN  CONSTITUTION. 

been  incorporated  into  the  American  constitutions, 
both  State  and  Federal.  The  Federal  Constitution 
contains  specific  and  general  limitations  upon  the 
power  of  both  State  and  Federal  governments, 
while  the  State  constitutions  impose  limitations 
upon  the  respective  State  governments.  Most  of 
the  State  constitutions  also  contain  formal  declara- 
tions, called  Bills  of  Rights,  enumerating  somewhat 
in  detail  the  rights  of  the  citizen  which  the  State 
government  must  respect.  Thus  the  prevalent  doc- 
trine of  natural  rights  was  formulated  and  made 
a  part  of  the  organic  law  of  the  land,  to  be  respected 
and  enforced  until  repealed  or  changed  by  the 
proper  authority.  All  the  American  constitutions 
make  it  the  duty  of  the  courts  to  prevent  any 
violation  of  these  rights  by  the  other  departments 
of  the  government  by  refusing  to  enforce  laws  which 
contain  such  violations  of  constitutional  rights. 

With  the  general  growth  and  spread  of  popular 
go.vernment,  there  appeared  a  political  philosophy 
whose  central  thought  and  fundamental  maxim  was, 
that  society,  collectively  and  individually,  can  attain, 
its  highest  development  by  being  left  free  from  gov- 
ernmental control,  as  far  as  this  is  possible,  provision 
being  made  by  the  government  only  for  the  protec- 
tion of  the  individual  and  of  society  by  the  pun- 
ishment of  crimes  and  trespasses.  The  so-called 
laissez-faire  philosphy  has,  until  lately,  so  controlled 


NATURAL  RIGHTS.  79 

public  opinion  in  the  English-speaking  world,  that  no 
disposition  has  been  manifested  by  the  depositaries  of 
political  power  to  do  more  than  to  control  the  crimi- 
nal classes,  provide  for  the  care  of  the  unfortunate 
poor  and  insane,  and  make  public  improvements. 
Hence  in  the  early  days  of  our  national  life,  the 
discussions  in  constitutional  law  were  chiefly  confined 
to  a  consideration  of  the  more  formal  provisions, 
which  determined  the  methods  of  governmental 
procedure,  and  defined  the  limits  of  each  branch  of 
the  government,  the  all-important  question  being  the 
relative  superiority  of  the  National  and  State  govern- 
ments. In  those  days  little  was  thought  of  those 
"  glittering  generalities,"  as  they  were  called,  which 
made  it  a  part  of  our  constitutional  law  that  man  is 
possessed  of  certain  inalienable  rights,  that  cannot  be 
denied  to  him  by  government,  and  which  denied  to 
government  the  power  to  do  more  than  to  prevent 
the  infliction  of  injuries  upon  others.  These  general 
declarations  of  private  rights  were  not  then  consid- 
ered as  important  in  controlling  the  power  of  gov- 
ernment, because  the  government  manifested  no 
disposition  to  violate  them.  But  a  change  has  since 
then  come  over  the  political  thought  of  the  country. 
Under  the  stress  of  economical  relations,  the  clashing 
of  private  interests,  the  conflicts  of  labor  and  capital, 
the  old  superstition  that  government  has  the  power 
to  banish  evil  from. the  earth,  if  it  could  only  be 


80      THE  UNWRITTEN  CONSTITUTION. 

induced  to  declare  the  supposed  causes  illegal,  has 
been  revived  ;  and  all  these  so-called  natural  rights, 
which  the  framers  of  our  constitutions  declared  to  be 
inalienable,  and  the  violation  of  which  they  pro- 
nounced to  be  a  just  cause  for  rebellion,  are  in 
imminent  danger  of  serious  infringement.  The 
State  is  called  on  to  protect  the  weak  against  the 
shrewdness  of  the  stronger,  to  determine  what  wages 
a  workman  shall  receive  for  his  labor,  and  how  many 
hours  he  shall  labor.  Many  trades  and  occupations 
are  being  prohibited,  because  some  are  damaged  in- 
cidentally by  their  prosecution,  and  many  ordinary 
pursuits  are  made  government  monopolies.  The 
demands  of  the  Socialists  and  Communists  vary  in 
degree  and  in  detail,  but  the  most  extreme  of 
them  insist  upon  the  assumption  by  government  of 
the  paternal  character  altogether,  abolishing  all 
private  property  in  land,  and  making  the  State  the 
sole  possessor  of  the  working  capital  of  the  nation. 

Contemplating  these  extraordinary  demands  of  the 
great  army  of  discontents,  and  their  apparent  power, 
with  the  growth  and  development  of  universal  suf- 
frage, to  enforce  their  views  of  civil  polity  upon  the 
civilized  world,  the  conservative  classes  stand  in  con- 
stant fear  of  the  advent  of  an  absolutism  more  tyran- 
nical and  more  unreasoning  than  any  before  experi- 
enced by  man, — the  absolutism  of  a  democratic 
majority. 


"8    ' 


NATURAL  RIGHTS.  81 

In  these  days  of  great  social  unrest,  we  applaud 
the  disposition  of  the  courts  to  seize  hold  of  these 
general  declarations  of  rights  as  an  authority  for 
them  to  lay  their  interdict  upon  all  legislative  acts 
which  interfere  with  the  individual's  natural  rights, 
even  though  these  acts  do  not  violate  any  specific 
or  special  provision  of  the  Constitution.  These  gen- 
eral provisions  furnish  sufficient  authority  for  judicial 
interference.  As  Judge  Cooley  '  has  forcibly  said 
in  respect  to  the  regulation  of  trades  and  professions  : 

'  '  What  the  legislature  ordains  and  the  constitution  does  not  prohibit 
must  be  lawful.  But  if  the  constitution  does  no  more  than  to  provide 
that  no  person  shall  be  deprived  of  his  life,  liberty,  or  property, 
except  by  due  process  of  law,  it  makes  an  important  provision  on  this 
subject,  because  it  is  an  important  part  of  civil  liberty  to  have  the 
right  to  follow  all  lawful  employments." 

The  cases  in  which  these  general  provisions  of  the 
Constitution  have  been  declared  by  the  courts  to  be 
binding  upon  the  government,  are  numerous.  At  an 
early  day,  it  was  judicially  decided  in  Massachusetts 
that  slavery  was  abolished  in  that  State  by  a  provi- 
sion of  the  State  constitution,  which  declared  that 
"  all  men  are  born  free  and  equal,  and  have  certain 
natural,  essential,  and  inalienable  rights,"  etc.8 
/Daily  the  courts  are  declaring  acts  of  the  legisla- 
ture to  be  unconstitutional,  because  they  violate  pri- 

1  Cooley  on  Torts,  p.  277. 

*  See  Draper's  "  Civil  War  in  America,"  vol.  i.,  p.  317  ;  Bancroft, 
"Hist,  of  U.  S.,"  vol.  x.,  p.  365  ;  Cooley's  "Principles  of  Const.," 
p.  213. 
6 


82      THE  UNWRITTEN  CONSTITUTION. 

vate  rights,  guaranteed  by  no  other  provisions  of  the 
constitutions,  but  these  general  declarations  of 
rights.  To  quote  from  a  late  decision  of  the  New 
York  Court  of  Appeals 1 : 

11  The  main  guaranty  of  private  rights  against  unjust  legislation  is 
found  in  that  memorable  clause  in  the  bill  of  rights,  that  no  man  shall 
be  deprived  of  life,  liberty,  or  property  without  due  process  of  law. 
This  guaranty  is  not  construed  in  any  narrower  technical  sense.  The 
right  to  life  may  be  invaded  without  its  destruction.  One  may  be 
deprived  of  his  liberty  in  a  constitutional  sense  without  putting  his 
person  in  confinement.  Property  may  be  taken  without  manual 
interference  therewith,  or  its  physical  destruction.  The  right  to  life 
includes  the  right  of  the  individual  to  his  body  in  its  completeness  and 
without  dismemberment ;  the  right  to  liberty,  the  right  to  exercise  his 
faculties,  and  to  follow  a  lawful  avocation  for  the  support  of  life  ;  the 
right  of  property,  the  right  to  acquire  property  and  enjoy  it  in  any 
way  consistent  with  the  equal  rights  of  others  and  the  just  exactions 
and  demands  of  the  State." 

1  Bertholf  v.  O'Reilly,  74  N.  Y.,  509. 


CHAPTER  VII. 

THE    CONSTITUTION    IN    THE    WAR    OF    SECESSION. 

IT  is  very  common  to  hear  that,  in  the  effort  to 
save  the  Union  from  dismemberment,  the  provisions 
of  the  Constitution  for  the  protection  of  the  individ- 
ual against  tyranny  and  oppression  were  set  aside, 
and  interferences  with  personal  liberty  were  com- 
monly practised,  in  violation  of  express  provisions 
of  the  written  Constitution.  This  charge  is  true  in 
two  important  particulars.  In  the  first  place,  the 
President,  by  his  proclamation  and  without  the  con- 
sent of  Congress,  suspended  the  right  to  the  writ  of 
habeas  corpus,  and  authorized  military  commanders 
to  arrest  and  imprison  any  person  reasonably  sus- 
pected of  treasonable  practices,  instructing  such 
commanders  to  reply  to  any  writ  of  habeas  corpus  to 
the  effect  that  the  imprisonment  was  by  order  of  the 
President. 

An  attempt  was  made  to  prevent  the  enforcement 
of  this  proclamation,  by  an  appeal  to  the  Chief- 
Justice  of  the  United  States,  Mr.  Taney.  A  writ  of 
habeas  corpus  was  issued  by  him,  while  sitting  in 

83 


84     THE  UNWRITTEN  CONSTITUTION. 

chambers  at  Baltimore,  commanding  the  body  of 
one  Merryman  to  be  brought  before  him.  Merry- 
man  had  been  arrested  and  imprisoned  by  order  of  a 
military  commander,  under  these  directions  of  the 
President ;  and  in  obedience  to  these  instructions  he 
made  return  to  the  writ,  refusing  to  deliver  up  his 
prisoner,  stating  the  reason  for  his  detention,  and 
the  authority  of  the  President  to  suspend  the  writ  of 
habeas  corpus.  Chief- Justice  Taney  filed  an  elaborate 
opinion,  in  which  he  maintained  that  the  power  to 
suspend  the  writ  of  habeas  corpus  was  vested  by  the 
Constitution  in  Congress,  and  not  in  the  Executive.1 
This  opinion  was  ignored  by  the  President,  and 
arrests  were  made  whenever  the  public  safety  was 
supposed  to  require  it.  This  collision  between  the 
executive  and  judicial  authority  naturally  caused 
a  great  deal  of  discussion,  and  numerous  were  the 
pamphlets,  which  were  at  the  time  issued  to  prove 
the  true  constitutional  rule  in  the  case.  The  most 
noteworthy  of  these  arguments  was  that  of  Mr. 
Horace  Binney,  who  took  the  side  of  the  President, 
holding  that  he  must  of  necessity  possess  the  power 
to  suspend  th,e  writ,  since  reason  as  well  as  experi- 
ence proved  that  to  be  of  value  in  the  suppression 
of  rebellions  and  insurrections,  the  right  of  suspen- 
sion must  be  exercised  promptly,  more  promptly  at 

1  See  Ex parte  Merryman,  Taney 's  Circuit-Court  Decisions,  Camp- 
bell's Rep.,  246. 


THE  CONSTITUTION.  85 

times  than  Congress  can  be  expected  to  act.  Public 
opinion  remained  divided  on  the  question,  and, 
finally,  in  order  to  remove  all  doubt  from  the 
legality  of  the  suspension  of  the  writ,  Congress 
passed  a  law  which  authorized  the  President  to 
suspend  the  writ  by  proclamation  whenever  the 
public  exigencies  required  it. 

The  second  case  of  supposed  violation  of  constitu- 
tional limitations  was  in  the  establishment  of  military 
commissions  to  try,  convict,  and  punish  any  one 
found  guilty  of  treasonable  practices.  The  power  of 
these  commissions  was  made  to  apply  to  those  who 
were  neither  members  of  the  military  and  naval 
forces  of  the  United  States  nor  prisoners  of  war. 
One  Milligan  was  found,  by  one  of  these  commis- 
sions, guilty  of  treason  in  attempting,  in  Indiana,  to 
render  aid  to  the  Southern  cause,  and  he  was  con- 
demned to  be  hung.  There  was  apparently  no 
doubt  of  his  guilt,  and  the  sentence  was  approved  by 
the  President  and  Secretary  of  War.  But  the  claim 
was  made  in  his  behalf,  that  since  he  was  a  civilian, 
and  was  living  in  a  part  of  the  country  in  which  the 
ordinary  courts,  both  State  and  Federal,  were  open 
for  the  administration  of  justice,  the  military  com- 
missions had  no  jurisdiction  over  his  case ;  and  that 
he  was  about  to  be  deprived  of  his  life,  without  due 
process  of  law,  and  in  violation  of  the  constitutional 
provision  which  guarantees  the  right  of  trial  by  jury. 


86      THE   UNWRITTEN  CONSTITUTION. 

The  claim  was  made  on  the  part  of  the  United 
States  that  these  constitutional  provisions  were  only 
operative  in  time  of  peace,  and  that  in  time  of  war 
martial  law  must  necessarily  take  the  place  of  the  ordi- 
nary law.  That  claim  being  conceded,  it  was  held 
that  the  President,  being  intrusted  with  the  prosecu- 
tion of  the  war,  must  of  necessity  determine  the  time 
when,  and  the  extent,  both  as  to  territory  and  the 
provisions  of  the  la«w,  to  which  the  ordinary  adminis- 
tration of  the  law  must  be  superseded  by  the  estab- 
lishment of  martial  rule.  That  that  was  the  con- 
stitutional rule  Qf  conduct  during  the  war  cannot  be 
doubted.  But  after  the  cessation  of  hostilities,  when 
the  Milligan  case  was  carried  on  appeal  to  the  Su- 
preme Court  of  the  United  States,  it  was  held  that 
the  constitutional  guaranties  of  trial  by  jury,  etc., 
were  in  force  during  the  war  as  well  as  in  peace,  and 
that  the  military  commissions  could  not  assume 
jurisdiction  over  offences  which  were  not  committed 
on  the  actual  theatre  of  war,  but  in  places  away  from 
the  battle-fields,  and  where  the  ordinary  courts  were 
administering  the  law  without  obstruction.  The 
chief-justice,  and  three  associate  justices  concurred 
in  the  judgment  of  the  majority  of  the  court,  but 
filed  a  separate  opinion,  in  which  the  judgment  was 
placed  on  the  ground  that  Congress,  and  not  the 
Executive,  had  the  power,  in  the  prosecution  of  the 
war,  in  order  to  suppress  treasonable  practices,  to 


THE  CONSTITUTION.  87 

establish  military  commissions  over  territory  not  in- 
cluded within  the  actual  military  operations,  Mr. 
Justice  Davis  expresses  the  conclusion  of  the  court 
thus: 

"  It  follows  from  what  has  been  said  on  this  subject  that  there  are 
occasions  when  martial  rule  can  be  properly  applied.  If,  in  foreign 
invasions  or  civil  war,  the  courts  are  actually  closed,  and  it  is 
impossible  to  administer  criminal  justice,  according  to  the  law,  then, 
on  the  theatre  of  active  military  operations,  where  war  really  prevails, 
there  is  a  necessity  to  furnish  a  substitute  for  the  civil  authority,  thus 
overthrown,  to  preserve  the  safety  of  the  army  and  society  ;  and  as  no 
power  is  left  but  the  military,  it  is  allowed  to  govern  by  martial  rule 
until  the  laws  can  have  their  free  course.  As  necessity  creates  the 
rule,  so  it  limits  its  duration  ;  for,  if  this  government  is  continued 
after  the  courts  are  reinstated,  it  is  a  gross  usurpation  of  power. 
Martial  rule  can  never  exist  where  the  courts  are  open  and  in  the 
proper  and  unobstructed  exercise  of  their  jurisdiction.  It  is  also 
confined  to  the  locality  of  actual  war.  Because  during  the  late 
Rebellion  it  could  not  have  been  enforced  in  Virginia,  where  the 
national  authority  was  overturned  and  the  courts  driven  out,  it  does  not 
follow  that  it  should  obtain  in  Indiana,  where  that  authority  was  never 
disputed  and  justice  was  always  administered.  And  so  in  the  case  of  a 
foreign  invasion,  martial  rule  may  become  a  necessity  in  one  case, 
when  in  another  it  would  be  mere  lawless  violence."  l 

I  think  the  claim  is  readily  substantiated  that  the 
extraordinary  powers  exercised  by  the  President  of 
the  United  States  during  the  civil  war  are  sanctioned 
by  the  customs  and  usages  of  nations,  and  are  em- 
ployed in  every  war  by  the  military  commandants, 
as  necessity  requires.3  And  it  is  very  probable, 
almost  certain,  that  in  any  similar  emergency  the 

1  Exparte  Milligan,  4  Wall.,  I,   127. 

9  See  the  arguments  of  counsel  for  Milligan  and  for  the  United 
States,  in  Exparte  Milligan,  4  Wall.,  I. 


88      THE  UNWRITTEN  CONSTITUTION. 

same  powers  will  be  claimed  and  exercised  by  the 
President,  although  they  virtually  make  him  a  dic- 
tator, bound  by  no  constitutional  limitations  which 
his  discretion  does  not  sanction,  or  the  popular  will 
does  not  impose.  For,  although  the  decision  of 
the  court  in  ex  part e  Milligan  is  a  denial  of  these 
powers,  and  proclaims  the  President  to  be  subject 
during  the  war  to  the  same  constitutional  limita- 
tions which  are  strictly  enforced  in  times  of  peace,  it 
furnishes  no  constitutional  rule  for  the  emergencies 
of  war,  since  the  decision  was  rendered  after  the  war 
had  been  brought  to  a  close,  and  the  pressure  of 
military  necessity  had  been  removed.  If  the  de- 
cision had  been  rendered  during  the  war,  when  the 
Executive  was  actually  exercising  these  extraordinary 
powers,  and  the  Executive  had  submitted  to  the 
judgment  of  the  court,  a  precedent  would  have  then 
been  established,  from  which  the  claim  might  have 
been  deduced,  that  in  all  future  wars  the  President, 
as  commander-in-chief  of  the  military  forces,  must, 
in  dealing  with  dangerous  persons,  observe  the  same 
constitutional  limitations  which  are  enforced  in  times 
of  peace.  It  is  very  likely  that  the  decree  of  the 
court  in  the  Milligan  case  would  have  met  with  the 
same  treatment  as  did  the  decision  of  Chief-Justice 
Taney  in  the  Merryman  case,  if  it  had  been  rendered 
during  the  prosecution  of  the  war.  But  it  is  still 
more  likely  that  the  court  would,  under  those  cir- 


THE  CONSTITUTION.  89 

cumstances,  have  yielded  to  the  sense  of  military 
necessity,  and  have  justified,  instead  of  condemning, 
the  employment  of  such  powers. 

The  explanation  of  the  apparent  contradiction  is 
not  to  be  found  in  the  maxim,  inter  arma  silent 
leges.  The  laws  are  not  silent  in  the  presence  of 
arms.  In  the  substitution  of  martial  rule  for  the 
civil  authorities,  there  is  only  a  change  in  the  form 
of  the  administration  of  the  law.  The  prevalent 
sense  of  right  furnishes,  in  war  as  well  as  in  peace, 
the  norm  for  the  formulation  of  rules  of  law.  The 
military  commander  is  not  an  arbitrary  dictator  and 
law-maker,  although  there  is  then  no  trial  by  jury, 
and  no  appeal  to  the  ordinary  courts  of  justice. 
Even  though  there  be  an  inexplicable  contradiction 
between  the  practices  of  military  rule  and  the  ex- 
press limitations  of  the  written  Constitution,  the 
rule  which  is  actually  enforced  in  time  of  war  is  the 
true  constitutional  rule,  and  not  that  which  in  time 
of  peace  the  Supreme  Court  of  the  United  States 
declares  to  be  the  proper  rule.  The  history  of  the 
civil  war  teaches  that  the  ordinary  provisions  of  the 
written  Constitution  cannot  be  as  rigidly  enforced 
in  times  of  great  national  emergencies  as  when  the 
ordinary  routine  of  governmental  action  meets  with 
no  serious  obstruction.  Whatever  may  be  the  proper 
deduction  from  the  written  Constitution,  it  is  an 
established  rule  of  the  unwritten  constitution  that 


9o     THE  UNWRITTEN  CONSTITUTION. 

the  President,  in  the  exercise  of  his  war  powers,  may 
substitute  martial  law  for  civil  law  as  far  as  the  pub- 
lic exigencies  may  in  his  judgment  require.  For 
the  time  being,  the  written  limitations  upon  his 
power  are  completely  laid  aside,  and  he  appears  in 
the  role  of  an  almost  absolute  dictator. 

But  Mr.  John  Quincy  Adams  voices  the  opinion 
of  many,  when  he  claims  that  these  extraordinary 
powers  are  necessary  implications  of  the  authority  to 
declare  and  carry  on  war : 

"  In  the  authority  given  to  Congress  by  the  Constitution  of  the 
United  States  to  declare  war,  all  the  powers,  incident  to  war,  are  by 
necessary  implication  conferred  upon  the  government  of  the  United 
States.  Now,  the  powers  incidental  to  war  are  derived,  not  from 
any  internal  municipal  source,  but  from  the  laws  and  usages  of 
nations.  There  are,  then,  in  the  authority  of  Congress  and  the 
Executive,  two  classes  of  powers,  altogether  different  in  their  nature, 
and  often  incompatible  with  each  other — the  war  power  and  the 
peace  power.  The  peace  power  is  limited  by  regulations  and  re- 
straints, by  provisions  prescribed  within  the  Constitution  itself.  The 
war  power  is  limited  only  by  the  law  and  usages  of  nations.  The 
power  is  tremendous.  It  is  strictly  constitutional,  but  it  breaks  down 
every  barrier  so  anxiously  erected  for  the  protection  of  liberty,  property, 
and  fife."1 

1  From  a  speech  delivered  in  1836,  and  quoted  by  Mr.  B.  F. 
Butler  in  his  argument  for  the  government  in  the  case  of  Ex  parte 
Milligan,  4  Wall.,  104. 


CHAPTER  VIII. 

CITIZENSHIP   IN   THE   UNITED   STATES. 

THE  claim  has  already  been  made '  that,  while 
most  of  the  principles  entering  into  the  composition 
of  the  American  Constitution  are  neither  original  nor 
novel, — the  American  constitutions  being  evolution- 
ary forms  of  the  British  Constitution, — yet,  there  are 
a  few  principles  which  first  found  expression  and  full 
realization  in  our  constitutional  history.  It  was  also 
claimed  that  the  novel  principles  of  our  constitu- 
tional systems  have  not  been  fully  realized  and 
properly  appreciated,  until  years  of  experience  re- 
vealed their  true  character  and  effect.3  One  of  these 
new  principles  was  that  of  subjecting  the  same  terri- 
tory and  the  same  people  to  the  jurisdiction  and 
control  of  two  separate  and  autonomous  govern- 
ments, which,  while  they  are  bound  together  into  one 
federal  system  of  government,  and  divide  the  powers 
of  government  between  them,  are  yet,  in  their  own 
spheres,  supreme  and  independent  of  each  other,  and 

1  See  ante  Chapter  II.,  p.  37.  *  See  ante  Chapter  II.,  p.  33. 

91 


92      THE  UNWRITTEN  CONSTITUTION. 

both   have   the    power  to    directly    command    and 
compel  the  obedience  of  the  individual  citizen. 

It  is  hardly  necessary  to  assert  that  this  is  the 
chief  fundamental  principle  of  the  American  consti- 
tutional system,  the  adoption  of  which  radically 
changed  the  character  of  the  Union,  from  a  league  of 
States  to  a  composite  State  of  States,  or,  to  borrow 
the  language  of  Chief-Justice  Chase 1 :  "  An  inde- 
structible Union  composed  of  indestructible  States." 
Before  the  adoption  of  the  principle,  there  was  no 
Federal  State,  only  a  league,  whose  very  life  depended 
upon  the  grace  and  favor  of  the  States  ;  but,  with  its 
adoption,  a  Federal  State  was  formed  in  such  a  mould, 
as  it  was  thought  and  hoped,  that  it  would  not  have 
the  power  to  absorb,  and  destroy  the  autonomy  of, 
the  States.  Therefore,  with  the  adoption  of  the 
present  Constitution  of  the  United  States,  two  sepa- 
rate governments  came  into  being,  the  Federal  and 
the  State,  each  having  its  own  separate  sphere  of 
action,  and  each  in  its  sphere  independent  of  the 
other.  The  Constitution  does  not  explicitly  make 
this  declaration  ;  but  it  is  a  necessary  consequence  of 
the  grant  or  reservation  to  each  government  of  the 
power  to  act  directly  on  the  individual.  The  rela- 
tions thus  established  between  the  individual  and  the 
two  governments  respectively,  logically  and  neces- 
sarily make  of  the  individual  a  citizen  of  each  govern- 

1  Texas  v.  White,  7  Wall.,  700,  -725. 


CITIZENSHIP.  93 

ment,  so  that  a  citizen  of  this  country  would  be  a 
citizen  of  the  United  States,  as  well  as  a  citizen  of 
the  State  in  which  he  has  his  legal  domicile. 

The  Constitution  of  the  United  States  does  not 
define  or  expressly  recognize  this  dual  citizenship, 
although  both  are  inferentially  recognized  and  re- 
ferred to.  It  recognizes  State  citizenship  in  the 
clause,1  which  declares  that  "  citizens  of  each  State 
shall  be  entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  States."  Federal  citizen- 
ship, however  uncertain  may  be  the  view  then  enter- 
tained of  its  character,  is  nevertheless  recognized  in 
those  clauses  which  provided,  thalrno  one  is  eligible 
to  the  position  of  President  "  excepting  a  natural- 
born  citizen,  or  a  citizen  of  the  United  States  at  the 
time  of  the  adoption  of  the  Constitution  "  a ;  of  sena- 
tor, unless  he  has  been  "  nine  years  a  citizen  of  the 
United  States  "  8 ;  or  to  the  position  of  representative 
in  Congress,  unless  he  has  been  "  seven  years  a 
citizen  of  the  United  States."  4  Like  every  other 
question  which  was  raised  before,  and  which  divided, 
the  constitutional  convention,  this  was  laid  aside 
with  a  compromise,  which  constituted  a  partial  and 
unsatisfactory  recognition  of  the  claims  of  both 
parties,  the  final  settlement  and  adjustment  of  those 
claims  being  left  to  the  future.  It  does  not  surprise 

1  Art.  IV.,  sec.  2.  8  Art.  I.,  sec.  3. 

•  Art.  II.,  sec.  i.  4  Art.  I.,  sec.  2. 


94     THE  UNWRITTEN  CONSTITUTION. 

one,  therefore,  to  learn  that  a  definite  settlement  of  the 
limitations  of  this  dual  citizenship  was  not  attained 
until  there  had  been  seventy-five  or  eighty  years  of 
contention,  when  the  dream  of  the  Websters  l  was 
first  fully  realized,  by  the  judicial  recognition  of  the 
dual  citizenship,  with  all  its  attending  consequences. 

For  forty  years  after  the  adoption  of  the  Constitu- 
tion, party  strife  over  the  fundamental  questions  of 
our  constitutional  system  was  not  active,  and  hence 
a  clear  definition  of  citizenship  was  not  then  attained. 
Justice  Story,  in  his  commentaries  on  the  Constitu- 
tion, said,  concerning  citizenship  :  "  It  has  always 
been  well  understood  among  jurists  in  this  country, 
that  the  citizens  of  each  State  constitute  the  body- 
politic  of  each  community,  called  the  people  of  the 
States ;  and  that  the  citizens  of  each  State  in  the 
Union  are  ipso  facto  citizens  of  the  United  States." 
It  had  also  been  held  by  Chief-Justice  Marshall,8  that 
a  person,  naturalized  under  the  acts  of  Congress, 
became  a  citizen  of  the  State  in  which  he  happened 
to  reside. 

But  the  question  was  not  permitted  to  remain 
quietly  in  this  unsettled  condition,  after  the  agita- 
tion in  respect  to  slavery  began.  The  State  Rights' 
party  were  very  plain  in  their  claim  of  the  limita- 

1  It  will  be  remembered  that  the  idea  of  a  composite  Federal  State, 
with  an  independent  autonomy  for  both  Federal  and  State  governments, 
originated  with  Pelatiah  and  Noah  Webster.  See  ante  Ch.  II.,  p.  32. 

9  In  Gassies  v.  Ballon,  6  Pet.,  761. 


CITIZENSHIP.  95 

tions  of  federal  citizenship,  holding  that  no  one  can 
be  a  citizen  of  the  United  States,  except  as  a  conse- 
quence of  being  the  citizen  of  some  State  or  Terri- 
N  tory  of  the  Union  ;  that  citizenship  of  the  State  was 
the  primary  fact,  while  the  citizenship  of  the  United 
States  was  secondary  and  consequential.1  The  State 
Rights'  doctrine  of  federal  citizenship  received  judi- 
cial indorsement  from  the  Supreme  Court  of  the 
United  States  in  the  famous  Dred  Scott 2  case,  in 
which  it  was  held  that  while  each  State  had  the 
power  to  invest  any  one  with  State  citizenship,  not 
contemplated  by  the  provisions  of  the  Constitution, 
—for  example,  negroes,  to  whom  citizenship  was 
denied  by  the  existing  general  constitutional  rules, 
— yet  such  a  person  did  not  thereby  acquire  the 
equal  participation  in  the  rights  and  privileges  of 
citizens  in  the  several  States,  as  was  provided  by 
the  Constitution.  Says  Chief-Justice  Taney  : 

1  "  If  by  citizen  of  the  United  States  he  [Senator  Clayton,  of 
Delaware]  means  a  citizen  at  large,  one  whose  citizenship  extends  to 
the  entire  geographical  limits  of  the  country  without  having  a  local 
citizenship  in  some  State  or  Territory,  a  sort  of  citizen  of  the  world, 
all  I  have  to  say  is  that  such  a  citizen  would  be  a  perfect  nondescript ; 
that  not  a  single  individual  of  this  description  can  be  found  in  the 
entire  mass  of  our  population.  Notwithstanding  all  the  pomp  and 
display  of  eloquence  on  the  occasion,  every  citizen  is  a  citizen  of  some 
State  or  Territory,  and  as  such,  under  an  express  provision  of  the 
Constitution,  is  entitled  to  all  the  privileges  and  immunities  of  citi- 
zens in  the  several  States ;  and  it  is  in  this  and  no  other  sense  that 
we  are  citizens  of  the  United  States." — Mr.  Calhoun's  argument  on 
the  "  Force  Bill."  See  his  Works,  II.,  242. 

1  Scott  v.  Sanford,  19  How.,  393. 


96      THE  UNWRITTEN  CONSTITUTION. 

' '  We  must  not  confound  the  rights  of  citizenship  which  a  State  may 
confer  within  its  own  limits,  and  the  rights  of  citizenship  as  a  member 
of  the  Union.  .  .  .  He  (such  a  person)  may  have  all  the  rights 
and  privileges  of  a  citizen  of  a  State,  and  yet  not  be  entitled  to  the 
rights  and  privileges  of  a  citizen  in  any  other  State.  .  .  .  Each 
State  may  .  .  .  confer  them  (i.e.,  the  rights  and  privileges  of 
State  citizenship)  upon  an  alien  or  any  one  it  thinks  proper,  or  upon 
any  class  or  description  of  persons,  yet  he  would  not  be  a  citizen  in 
the  sense  in  which  that  word  is  used  in  the  Constitution  of  the  United 
States,  nor  entitled  to  sue  as  such  in  one  of  its  courts,  nor  to  the 
privileges  and  immunities  of  a  citizen  in  the  other  States.  The  rights 
which  he  would  acquire  would  be  restricted  to  the  State  which  gave 
them.  .  .  .  No  State,  since  the  adoption  of  the  Constitution, 
can,  by  naturalizing  an  alien,  invest  him  with  the  rights  and  privileges 
secured  to  a  citizen  of  a  State  under  the  Federal  Government,  al- 
though, so  far  as  the  State  alone  was  concerned,  he  would  undoubtedly 
be  entitled  to  the  rights  of  a  citizen  and  clothed  with  all  the  rights  and 
immunities  which  the  Constitution  and  laws  of  the  State  attached  to 
that  character." 

Mr.  Justice  Curtis  dissented  from  the  conclusion 
of  the  majority  of  the  court,  and  held  that 

"  it  is  left  to  each  State  to  determine  what  free  persons  born  within 
its  limits  shall  be  citizens  of  such  State  and  thereby  be  citizens  of  the 
United  States.  ...  It  must  be  remembered  that,  though  the 
Constitution  was  to  form  a  government,  and  under  it  the  United 
States  of  America  were  to  be  one  united  sovereign  nation  to  which 
loyalty  and  obedience  on  the  one  side,  and  from  which  protection  and 
privileges  on  the  other,  would  be  due,  yet  the  several  sovereign  States, 
whose  people  were  then  citizens,  were  not  only  to  continue  in  exist- 
ence, but  with  powers  unimpaired,  except  so  far  as  they  were  granted 
by  the  people  to  the  national  government.  Among  the  powers  un- 
questionably possessed  by  the  several  States  was  that  of  determining 
what  persons  should,  and  what  persons  should  not,  be  citizens." 

Judge  Curtis  was  supposed  to  voice  the  sentiment 
of  the  opponents  of  the  State  Rights'  party,  and  it 
is  to  be  observed  that,  in  this  dissenting  opinion,  as 


CITIZENSHIP.  97 

well  as  in  the  opinion  of  the  court,  it  was  held  that 
the  citizenship  of  the  United  States  was  dependent 
upon,  and  proceeded  from,  citizenship  of  the  State, 
the  only  point  of  difference  being  the  power  of  the 
State  to  invest  persons,  who  were  not  generally 
conceded  the  rights  of  citizens,  with  the  citizenship 
of  the  United  States  by  making  them  citizens  of  the 
State,  the  State  Rights'  party  denying  such  a  power 
to  the  State,  and  the  opposition  claiming  for  the 
State  that  right.  The  great  hue  and  cry  raised  by 
the  decision  of  the  court,  if  it  were  not  directed  al- 
together against  the  dicta  of  the  court,  was  certainly 
not  caused  by  the  subordination  of  national  citizen- 
ship to  State  citizenship,  but  by  the  denial  of 
national  citizenship  as  a  necessary  consequence  of 
State  citizenship. 

But  a  change  was  soon  to  be  wrought  in  the  views 
entertained  on  this  constitutional  question,  by  the 
arbitrament  of  the  sword..  When  President  Lincoln, 
by  his  proclamation,  emancipated  the  slaves  of  the 
Southern  States,  he  not  only  increased  the  relative 
strength  of  the  National  Government,  but  rendered 
necessary  a  radical  change  in  the  theories  prevalent 
as  to  citizenship  in  the  United  States.  If  the  Na- 
tional Government  had  the  power  to  abolish  slavery, 
in  other  words,  to  regulate  the  legal  status  of  the 
individual,  surely  national  citizenship  must  be  para- 
mount, while  State  citizenship  is  subordinate  and 
7 


98      THE  UNWRITTEN  CONSTITUTION. 

incidental,  and  this  was  the  claim  of  Senator  Lymar. 
Trumbull,  and  his  supporters,  in  the  presentation  of 
the  famous  "  Civil  Rights  Bill,"  in  which  it  was  de- 
clared that  "  all  persons  born  in  the  United  States: 
and  not  subject  to  any  foreign  power,  excluding 
Indians  not  taxed,  are  citizens  of  the  United 
States/'  and,  as  such,  are  entitled  to  the  privileges 
and  immunities  of  white  citizens  in  the  several  States. 
But  very  many  believed  that  the  constitutional 
views  on  the  subject,  declared  in  the  Dred  Scott 
case,  would  be  an  obstacle  to  the  procurement  of  a 
judicial  recognition  of  the  post-bellum  doctrine,  and 
hence  the  fourteenth  amendment  was  proposed  and 
adopted,  in  which  it  was  declared  that  "all  persons 
born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside." 
Not  only  does  this  amendment  define  national  and 
State  citizenship,  and  make  the  State  citizenship  a 
derivative  of  the  national,  but  it  proceeds  to  make  a 
declaration  concerning  the  rights  and  privileges  of  a 
citizen  of  the  United  States.  It  declares  that  "  no 
State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of 
the  United  States  ;  nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property  without  due  pro- 
cess of  law  ;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws." 


CITIZENSHIP.  99 

This  constitutional  declaration  has  been  frequently 
brought  before  the  court  for  construction  ;  but,  be- 
fore giving  the  view  taken  by  the  Supreme  Court  of 
the  United  States  of  its  effect,  I  will  attempt  to  show, 
by  analogy  from  other  congressional  action,  as  well 
as  by  the  language  of  the  amendment,  that  the 
framers  and  enactors  of  it  intended  to  place  the 
negro,  in  his  daily  life,  completely  under  the  control 
of  the  National  Government.  First,  as  to  the  language 
of  the  amendment.  Not  content  with  denying  to 
the  States  the  authority  to  abridge  by  legislation 
"  the  privileges  and  immunities  of  citizens  of  the 
United  States," — which,  by  the  way,  was  a  useless 
prohibition,  if  by  the  privileges  and  immunities  were 
not  meant  those  fundamental  privileges  and  immuni- 
ties which  inhere  in  the  definition  of  citizenship, — the 
amendment  proceeds  to  declare  in  effect  what  those 
privileges  and  immunities  are,  viz.  :  "  Nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law  ;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws."  A  literal  interpretation  of  this  amendment 
would  give  to  the  United  States  Supreme  Court  the 
power  at  any  time  to  inquire  into  the  effect  of  State 
legislation  on  the  fundamental  privileges  and  immu- 
nities of  the  citizen,  which,  before  the  adoption  of 
the  amendment,  were  exclusively  within  the  control 
and  protection  of  the  State  governments.  That  that 


ioo    THE  UNWRITTEN  CONSTITUTION. 

was  the  intention  of  the  political  leaders  is  easily 
shown  by  the  speeches  in  Congress.  Senator  Trum- 
bull,  in  the  debate  on  the  Civil  Rights  bill,  said : 

"  But,  sir,  what  rights  do  citizens  of  the  United  States  have  ?  To 
be  a  citizen  of  the  United  States  carries  with  it  some  rights  ;  and 
what  are  they  ?  They  are  those  inherent  fundamental  rights  which 
belong  to  free  citizens  or  freemen  in  all  countries,  such  as  the  rights 
enumerated  in  this  bill  [to  make  and  enforce  contracts,  to  sue,  be 
parties  and  give  evidence,  to  inherit,  purchase,  lease,  sell,  hold,  and 
convey  real  estate  and  personal  property,  and  to  full  and  equal  benefit 
of  all  laws  and  proceedings  for  the  security  of  person  and  property, 
as  enjoyed  by  white  citizens]  ;  and  they  belong  to  them  in  all  the 
States  in  the  Union.  The  right  of  American  citizenship  means 
something." 

And  in  another  place  : 

"  What  are  they  [i.e.,  the  rights  of  a  citizen  of  the  United  States]  ? 
The  right  of  personal  security,  the  right  of  personal  liberty,  and  the 
right  to  acquire  and  enjoy  property."  l 

We  would  likewise  be  forced  to  take  this  view  of 
the  operation  of  this  amendment  by  the  conviction 
that  any  other  construction  would  make  this  part  of 
the  amendment  "a  vain  and  idle  enactment."* 

1  Congressional  Globe,  1st  Sess.,  3gth  Cong.,  p.  1757. 

2  "  It  [the  Fourteenth  Amendment]  assumes  that  there  are    .    .    . 
privileges  and  immunities  which  belong  of  right  to  citizens,  as  such, 
and  ordains  that  they  shall  not  be  abridged  by  State  legislation.     If 
this  inhibition  has  no  reference  to  privileges  and  immunities'of  this 
character,  but  only  refers,  as  held  by  the  majority  of  the  court  in  their 
opinion,  to  such  privileges  and  immunities  as  were  before  its  adop- 
tion specially  designated  in  the  Constitution  or  necessarily  implied  as 
belonging  to  citizens  of  the  United  States,  it  was  a  vain  and  idle 
enactment  which  accomplished  nothing,  and  most  unnecessarily  ex- 
cited Congress  and  the  people  on  its  passage.     With  privileges  and 
immunities  thus  designated  or  implied,   no  State  could  ever  have 


CITIZENSHIP.  101 

Flushed  with  a  decisive  victory  over  the  State 
Rights'  party,  obtained  in  the  highest  court  of 
appeals  known  to  politics,  and  inflamed  by  the 
enactment  of  the  so-called  Black  laws  by  several  of 
the  Southern  legislatures,  which  were  intended  to 
repress  and  oppress  the  negro  in  every  sphere  of 
life  ;  without  thought  of  the  far-reaching  effect  of 
their  proposed  legislation,  the  Republican  party  pro- 
ceeded to  make  laws,  which  would  be  strong  enough 
to  protect  the  negro  in  his  freedom.  If  the  consti- 

interfered  by  its  laws,  and  no  constitutional  provision  was  required  to 
inhibit  such  interference.  .  .  .  But  if  the  amendment  refers  to 
the  natural  and  inalienable  rights  which  belong  to  all  citizens,  the 
inhibition  has  a  profound  significance  and  consequence." — Mr.  Jus- 
tice Field's  dissenting  opinion  in  Slaughter-house  cases. 

"  The  privileges  and  immunities  of  a  citizen  of  the  United  States 
include,  among  other  things,  the  fundamental  rights  of  life,  liberty, 
and  property,  and  also  the  rights  which  pertain  to  him  by  reason  of 
his  membership  of  a  nation  .  .  .  without  authority  (to  secure 
such  rights  and  privileges)  any  government  claiming  to  be  national  is 
glaringly  defective.  The  construction  adopted  by  the  majority  of  my 
brethren  is,  in  my  judgment,  much  too  narrow.  It  defeats  by  a 
limitation  not  anticipated  the  intent  of  those  by  whom  the  instrument 
was  framed,  and  of  those  by  whom  it  was  adopted.  To  the  extent  of 
that  limitation  it  turns,  as  it  were,  what  was  meant  for  bread,  into 
stone." — Justice  Swayne's  dissenting  opinion  in  Slaughter-house  cases. 

"  I  think  sufficient  has  been  said  to  show  that  citizenship  is  not  an 
empty  name,  but  that,  in  this  country,  at  least,  it  has  connected  with 
it  certain  rights,  privileges,  and  immunities  of  the  greatest  import- 
ance, and  to  say  that  these  rights  and  immunities  attach  only  to  State 
citizenship,  and  not  to  citizenship  of  the  United  States,  appears  to  me 
to  evince  a  very  narrow  and  insufficient  estimate  of  constitutional  his- 
tory and  the  rights  of  men,  not  to  say  the  rights  of  the  American 
people." — Mr.  Justice  Bradley 's  dissenting  opinion  in  Slaughter-house 


102    TH%  .l?NW.fTTN  CONSTITUTION. 

tutional  amendment  had  been  allowed  to  have  its 
full  literal  effect,  the  end  obtained  v/ould  be  what 
Madison,  Randolph,  and  Hamilton  proposed,  in  the 
constitutional  convention  of  1787,  to  accomplish  by 
the  Virginia  plan  of  government,  viz. :  the  establish- 
ment of  a  strong  national  government  and  the  sub- 
jection of  the  States  to  the  condition  of  provinces, 
and  this  government  would  have  very  soon  ceased 
to  be  a  federal  government,  save  in  name.  I  do  not 
suppose  that  the  majority  of  those,  whose  votes 
brought  about  the  adoption  of  this  amendment,  in- 
tended it  to  have  this  effect  in  general ;  but  it  is 
very  certain  that  they  desired  and  intended  to  de- 
prive the  Southern  people  of  all  legal  opportunity  to 
keep  the  negro  in  political  and  social  subjection,  and, 
thus,  to  frustrate  the  realization  of  what  they  con- 
sidered the  legitimate  results  of  the  war.  But  this 
special  end  could  not  be  attained  without  putting 
an  end,  everywhere,  to  local  self-government  in  the 
American  sense. 

That  disastrous  result  was,  however,  happily 
averted  by  the  bold  and  courageous  stand  taken 
by  the  Supreme  Court  of  the  United  States,  when 
this  amendment  was  brought  before  them  for  con- 
struction. Feeling  assured  that  the  people  in  their 
cooler  moments  would  not  have  sanctioned  the  far- 
reaching  effects  of  their  action  ;  that  they  lost  sight 
of  the  general  effect  in  their  eager  pursuit  of  a  special 


CITIZENSHIP.  103 

end,  the  court  dared  to  withstand  the  popular  will  as 
expressed  in  the  letter  of  this  amendment  ;  and,  by 
giving  it  a  narrow  and  close  construction,  to  cut  off 
its  injurious  consequences,  although  in  doing  so,  as 
was  stated  by  Justice  Swayne,  "  it  turns  what  was 
meant  for  bread,  into  stone,"  and  in  very  large 
measure  prevented  the  realization  of  the  end  ex- 
pressly had  in  view,  viz. :  the  transfer  of  all  the 
rights  of  the  negro,  as  a  citizen,  to  the  protection  of 
the  United  States  Government. 

The  opinion  of  the  court  in  the  Slaughter-house 
cases1  was  delivered  by  Mr.  Justice  Miller,  and  con- 
curred in  by  a  majority  of  the  court,  but  dissented 
from  by  four  justices  of  the  court,  of  whom  three 
justices,  Field,  Swayne,  and  Bradley,  wrote  dissent- 
ing opinions. 

•  The  argument  of  the  court  was  that  this  amend- 
ment, when  considered  in  the  light  of  history,  recog- 
nized two  separate  citizenships,  the  citizenship  of 
the  United  States  and  the  citizenship  of  the  States, 
and  each  citizenship  had  its  corresponding  and  differ- 
ent privileges  and  immunities.  The  privileges  and 
immunities  of  the  citizens  of  the  States  were  defined 
to  be  "  those  privileges  and  immunities  which  are 
fundamental,  which  belong  of  right  to  the  citizens 
of  all  free  governments,  and  which  have  at  all  times 
been  enjoyed  by  citizens  of  the  several  States  which 

>i6Wall.,  37,  57- 


104    THE  UNWRITTEN  CONSTITUTION. 

compose  this  Union,  from  the  time  of  their  becoming 
free,  independent,  and  sovereign.  What  these  funda- 
mental principles  are  it  would  be  more  tedious  than 
difficult  to  enumerate.1  They  may  all,  however,  be 
comprehended  under  the  following  general  heads : 
protection  by  the  government,  with  the  right  to 
acquire  and  possess  property  of  every  kind,  and  to 
pursue  and  obtain  happiness  and  safety,  subject, 
nevertheless,  to  such  restraints  as  the  government 
may  prescribe  for  the  general  good  of  the  whole/' 2 

After  stating  that  "it  would  be  the  vainest  show 
of  learning,"  to  show  that  up  to  the  adoption  of  the 
post-bellum  amendments  these  privileges  were  not 
under  the  protection  of  the  United  States  govern- 
ment,  the  court  say  • 

"  Was  it  the  purpose  of  the  fourteenth  amendment,  by  the  simple 
declaration  that  no  State  should  make  or  enforce  any  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of  the  United  States, 
to  transfer  the  security  and  protection  of  all  the  civil  rights  which  we 
have  mentioned,  from  the  States  to  the  Federal  Government  ?  And 
where  it  is  declared  that  Congress  shall  have  the  power  to  enforce  that 
article,  was  it  intended  to  bring  within  the  power  of  Congress  the 
entire  domain  of  civil  rights,  heretofore  belonging  exclusively  to  the 
States  ? 

"All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs 
in  error  be  sound.  For  not  only  are  these  rights  subject  to  the 

1  See  Tiedeman's  "  Limitations  of  Police  Power,"  for  a  detailed 
discussion  and  application  of  them  to  the  daily  experiences  of  the 
individual. 

a  Washington,  J.,  in  Corfield  v.  Coryell,  4  Wash.  C.  C.,  371  ;  and 
adopted  by  the  Supreme  Court  of  the  United  States,  in  Ward  v, 
State  of  Maryland,  12  Wall.,  430. 


CITIZENSHIP.  105 

control  of  Congress,  whenever  in  its  discretion  any  of  them  are  sup- 
posed to  be  abridged  by  State  legislation,  but  that  body  may  also  pass 
laws  in  advance,  limiting  and  restricting  the  exercise  of  legislative 
power  by  the  States,  in  their  most  ordinary  and  usual  functions,  as,  in 
its  judgment,  it  may  think  proper  on  all  such  subjects.  And  still 
further,  such  a  construction,  followed  by  the  reversal  of  the  judgment 
of  the  Supreme  Court  of  Louisiana  in  these  cases,  would  constitute 
this  court  a  perpetual  censor  upon  all  legislation  of  the  States  on  the 
civil  rights  of  their  own  citizens,  with  authority  to  nullify  such  as  it 
did  not  approve  as  consistent  with  those  rights  as  they  existed  at  the 
time  of  the  adoption  of  the  amendment.  The  argument  we  admit  is 
not  always  the  most  conclusive  which  is  drawn  from  the  consequences 
urged  against  the  adoption  of  a  particular  construction  of  an  instru- 
ment. But  when,  as  in  the  case  before  us,  these  consequences  are  so 
serious,  so  far-reaching  and  pervading,  so  great  a  departure  from  the 
structure  and  spirit  of  our  institutions,  when  the  effect  is  to  fetter  and 
degrade  the  State  governments  by  subjecting  them  to  the  control  of 
Congress,  in  the  exercise  of  powers  heretofore  universally  conceded  to 
them  of  the  most  ordinary  and  fundamental  character  ;  when  in  fact 
it  radically  changes  the  whole  theory  of  the  relations  of  the  State  and 
Federal  governments  to  each  other,  and  of  both  these  governments  to 
the  people, — the  argument  has  a  force  that  is  irresistible,  in  the  absence 
of  language  which  expresses  such  a  purpose  too  clearly  to  admit 
of  doubt."  l 

The  court  then  proceed  to  eumerate  what  are  to 
be  considered  as  the  privileges  and  immunities  of  the 
United  States  which  the  States  cannot  abridge,  and 
which  are  as  follows  : 

"  To  come  to  the  seat  of  government  to  assert  any  claim  upon  that 
government,  to  transact  any  business  with  it,  to  seek  its  protection,  to 
share  its  offices,  to  engage  in  administering  its  functions. 

' '  Free  access  to  its  seaports,  through  which  all  operations  of  foreign 
commerce  are  conducted  ;  to  the  sub-treasuries,  land-offices,  and  courts 
of  justice  in  the  several  States. 

"  To  demand  the  care  and  protection  of  the  Federal  Government 
over  life,  liberty,  and  property,  when  on  the  high  seas  or  within  the 
jurisdiction  of  a  foreign  government. 

1  Pp.  77,  78. 


io6    THE  UNWRITTEN  CONSTITUTION. 

"  To  peaceably  assemble  and  petition  for  redress  of  grievances. 

"  The  writ  of  habeas  corpus. 

"  To  use  the  navigable  waters  of  the  United  States,  however  they 
may  penetrate  the  territory  of  the  several  States. 

' '  To  become  a  citizen  of  any  one  of  the  several  States  by  a  bona- 
Jide  residence  therein." 

The  judgment  of  the  court  was  that  these  were  the 
only  privileges  and  immunities  whose  protection  is 
provided  for  in  this  amendment,  and  that  the  ordi- 
nary and  relatively  more  important  privileges  and 
immunities  of  citizenship  "  are  not  privileges  and  im- 
munities of  citizens  of  the  United  States  within  the 
meaning  of  the  clause  of  the  fourteenth  amendment 
under  consideration." 

The  noble  fundamental  purpose  of  the  court  in 
checking  the  literal  operation  of  the  fourteenth 
amendment  is  to  be  found  'expressed  in  the  closing 
paragraphs  of  the  opinion. 

"  But  however  pervading  this  sentiment  [the  desire  for  a  strong 
national  government]  and  however  it  may  have  contributed  to  the 
adoption  of  the  amendments  we  have  been  considering,  we  do  not  see 
in  those  amendments  any  purpose  to  destroy  the  main  features  of  the 
general  system.  Under  the  pressure  of  all  the  excited  feeling  growing 
out  of  the  war,  our  statesmen  have  still  believed  that  the  existence  of 
the  States,  with  powers  for  domestic  and  local  government,  including 
the  regulation  of  civil  rights — the  rights  of  person  and  of  property — 
was  essential  to  the  complex  form  of  government,  though  they  have 
thought  proper  to  impose  additional  limitations  on  the  States,  and  to 
confer  additional  power  on  that  of  the  nation. 

"  But  whatever  fluctuations  may  be  seen  in  the  history  of  public 
opinion  on  this  subject  during  the  period  of  our  national  existence, 
we  think  it  will  be  found  that  this  court,  so  far  as  its  functions  re- 
quired, has  always  held  with  a  steady  and  an  even  hand  the  balance 


CITIZENSHIP.  107 

between  State  and  Federal  power,  and  we  trust  that  such  may  con- 
tinue to  be  the  history  of  its  relation  to  that  subject  so  long  as  it  shall 
have  duties  to  perform  which  demand  of  it  a  construction  of  the  Con- 
stitution or  of  any  of  its  parts." 

This  instance  furnishes  one  of  the  most  striking 
proofs  of  the  thesis,  that  political  constitutions  are  a 
growth,  evolved  from  all  the  forces  of  society,  both 
material  and  spiritual. 

We  find  first  a  novel  principle  of  politics,  />.,  that 
of  a  dual  government,  with  separate  autonomies, 
proposed  and  adopted  by  a  nation,  but  its  conse- 
quences yet  unknown.  There  is  a  faint  recognition 
at  once  even  in  the  written  Constitution  of  one  con- 
sequence, viz.,  a  dual  citizenship,  but  the  relative 
strength  and  obligation  of  the  two  separate  citizen- 
ships are  not  referred  to.  After  remaining  in  doubt 
for  many  years,  it  is  claimed  by  the  State  Rights' 
party — and  the  claim  is  indorsed  and  pronounced  to 
be  the  supreme  law  of  the  land  by  the  Supreme 
Court  of  the  United  States — that  the  citizenship  of7 
the  United  States  is  an  incident  of,  and  depends  forf* 
existence  upon,  the  citizenship  of  the  States.  This 
decision  of  the  Supreme  Court  was  practically  over- 
ruled by  the  findings  of  the  court  of  war,  but  in 
order  to  provide  a  technical  repeal,  an  amendment 
to  the  Federal  Constitution  was  adopted,  declaring 
the  federal  citizenship  to  be  the  primary  and  all- 
important  thing,  while  the  citizenship  of  the  States 
was  subordinate  and  incidental  to  it.  While  it  is 


io8    THE  UNWRITTEN  CONSTITUTION. 

very  likely  that  the  people  did  not  wish  to  do  more, 
except  possibly  in  the  South,  than  to  establish  the 
perpetual  supremacy  of  the  National  Government 
and  of  national  citizenship  over  State  governments 
and  State  citizenship,  the  literal  scope  was  such,  that 
a  strict  enforcement  of  the  amendment  would  have 
resulted  in  a  complete  reduction  of  the  States  to  the 
condition  of  provinces,  and  a  grant  to  the  United 
States  Government  of  a  supervisory  control  over  the 
smallest  concerns  of  life. 

Alarmed  at  the  peril  in  which  the  people  stood, 
and  deeply  impressed  with  the  necessity  of  providing 
a  remedy,  the  Supreme  Court  of  the  United  States 
averted  the  evil  consequences  by  keeping  the  opera- 
tion of  the  amendment  within  the  limits  which  they 
felt  assured  would  have  been  imposed  by  the  people, 
if  their  judgment  had  not  been  blinded  with  passion, 
and  which  in  their  cooler  moments  they  would  ratify. 
The  so-called  strict-constructionists  may  assert  that 
this  was  an  unwarranted  exercise  of  the  judicial 
power,  and  one  that  could  become  the  effective  in- 
strument of  tyranny;  this  may  be  so.  But  if  by 
constitutional  law  we  mean  those  rules  which  serve 
to  define  and  limit  the  powers  of  government,  we 
must  pronounce  the  decision  of  the  court  in  the 
Slaughter-house  cases  to  be  a  successful  modifica- 
tion of  the  rule  found  in  the  fourteenth  amendment. 
That  this  reflected  the  prevalent,  but  perhaps  then 


CITIZENSHIP.  109 

unexpressed,  sense  of  right,  is  proven  by  the  fact 
that  no  attempt  was  made  to  overrule  it  by  additional 
legislation  ;  nor  was  there  any  outcry  against  it,  after 
the  people  had  recovered  from  their  surprise  at  this 
bold  limitation  of  their  written  commands.  Although 
there  have  been  some  material  but  minor  modifica- 
tions of  the  rule  in  subsequent  decisions,  the  ruling 
of  the  court  in  these  cases  is  still  a  part  of  the  con- 
stitutional law  of  the  United  States,  serving  as  a 
bulwark  to  the  States  in  their  struggle  for  autonomy 
and  self-government. 


CHAPTER  IX. 

STATE  SOVEREIGNTY  AND   RIGHT   OF   SECESSION. 

FROM  the  adoption  of  the  Kentucky  resolutions  of 
1798,  until  the  hard  logic  of  war  placed  the  stamp  of 
illegality  upon  the  doctrine,  there  had  always  been 
a  strong  and  influential  party,  whose  fundamental 
tenets  were  that  the  Union  was  a  confederation  of 
sovereign  States,  which  are  bound  by  the  laws  and 
the  Constitution  of  the  United  States,  as  long  as 
they  remain  in  the  Union  ;  but  which  may,  separately 
and  at  their  own  discretion,  withdraw  or  secede  from 
the  Union,  whenever  they  consider  the  confederation 
detrimental  to  themselves.  Each  State,  as  a  sover- 
eign, was  conceded  this  power.  There  were,  of 
course,  parties  which  asserted  the  sovereignty  of  the 
United  States,  and  denied  to  the  States  this  right  of 
secession. 

This  contest  of  principle  was  another  consequence 
of  the  failure  of  the  constitutional  convention  to 
settle  definitely  the  true  relation  of  the  States  to 
each  other  and  to  the  Federal  State.  I  do  not 
believe  that  the  arguments  for  and  against  the  right 

no 


STATE  SOVEREIGNTY.  in 

of  secession,  which  are  to  be  found  in  the  speeches 
of  Webster  and  Calhoun,  and  of  Clay  and  Hayne, 
and  in  histories  and  other  books  without  number, 
present  the  matter  in  its  true  light.  It  is  not  incon- 
sistent with  the  highest  respect  for  the  great  men, 
who  participated  with  so  much  effect  and  power  in 
these  political  debates  of  the  Senate,  for  the  claim  to 
be  made  that  there  was  a  failure  on  both  sides  to 
appreciate  and  bring  to  light  the  real  scientific  facts 
of  the  situation,  which  justify  logically  the  ultimate 
settlement  of  the  question.  It  is  with  some  hesita- 
tion that  I  proceed  to  present  what  I  consider  the 
true  view  ;  but  if  there  is  no  defect  in  my  major 
premise,  as  explained  and  developed  in  the  first  and 
second  chapters,  the  conclusion,  to  which  I  come  in 
the  discussion  of  the  doctrine  of  State  sovereignty 
and  the  right  of  secession,  is  irresistible. 

In  this  contest,  the  South  was  the  aggressive 
party,  while  the  North  only  resisted  the  extreme 
conclusion  of  the  South  in  respect  to  the  right  of  a 
single  State  to  secede,  whenever  it  was  to  its  interest 
to  do  so.  The  Southern  claim  was  that  this  Union 
was  a  confederation  of  independent,  sovereign  States ; 
that  the  Federal  Government  was  the  creature  of  the 
States,  having  only  that  power  which  the  States  del- 
egated to  it,  and  that  it  may  be  shorn  of  its  power 
over  any  single  State,  whenever  that  State,  in  conse- 
quence of  the  violation  of  the  constitutional  limita- 


H2    THE  UNWRITTEN  CONSTITUTION. 

tions  by  the  United  States  Government,  of  which  the 
State  is  to  be  the  final  judge, — decides  to  secede 
from  the  Union,  and  establish  itself  as  an  independ- 
ent nation. 

Without  undertaking  to  present  any  lengthy 
statement  of  the  arguments  pro  and  con,  it  may 
be  pithily  stated  that  the  Southern  claim  of  secession 
rested  upon  two  fundamental  principles.  One  was 
that  of  the  Declaration  of  Independence,  that  "  all 
governments  derive  their  just  powers  from  the  con- 
sent of  the  governed  " ;  the  general  conclusion  being 
that  the  governed  may  legally  withdraw  that  consent, 
whenever  the  powers  have  been  tyrannically  em- 
ployed for  the  oppression  of  the  people.  The 
second  principle  was  that  sovereignty  was  reposed 
under  our  constitutional  system  in  the  States ;  and 
that,  in  consequence  of  this  fundamental  fact,  the 
Union  was,  under  this  Constitution  as  under  the 
Articles  of  Confederation,  only  a  league  or  confed- 
eration of  sovereign  States,  which  combined  for 
purposes  of  mutual  protection,  and  which  consented 
to  a  grant  to  their  general  agent  or  government  of 
those  powers  which  were  necessary  to  the  promotion 
of  their  general  welfare ;  but  that  any  one  of  these 
sovereign  States,  under  an  application  of  the  first 
principle  (i.e.,  government  by  consent  of  the  gov- 
erned), may  withdraw  from  the  Union,  whenever  it 
considers  itself  wronged  by  the  General  Government 


STATE  SOVEREIGNTY.  113 

or  its  interests  prejudiced  by  remaining  in  the  Union. 
The  opponents  of  the  Southern  theory  have  uni- 
formly admitted  the  correctness  of  the  principle,  that 
the  just  powers  of  government  are  derived  from  the 
consent  of  the  governed  ;  but  claim  that  this  Consti- 
tution changed  the  Union  from  a  league  into  a 
nation,  and  vested  the  sovereignty  in  the  people  of 
the  United  States. 

Both  principles  are  so  far  false  as  to  be  misleading, 
and  the  general  prevalence  of  these  misconceptions^ 
has,  in  my  judgment,  been  the  chief  cause  of  the 
greatest  civil  war  history  has  ever  recorded.  I  do 
not  wish  to  be  understood  as  losing  sight  of  the  de- 
mand for  the  abolition  of  slavery  as  a  cause  of  the 
war.  On  the  contrary,  I  recognize  it  as  the  imme- 
diate occasion  of  the  war  ;  but  I  claim  that  the  war 
might  have  been  averted  if  the  entire  Southern  peo- 
ple had  not  been  educated  in  the  political  faith  which 
rested  upon  these  two  misleading  principles. 

The  natural  and  uncontrollable  impulse  of  the 
human  mind  is  to  demand  a  satisfactory  basis  for 
the  exercise  of  governmental  authority.  The  funda- 
mental query  of  political  philosophy  is,  By  what 
right  do  those  in  authority  command  your  and  my 
obedience  ?  This  query  has  at  all  times  required  an 
answer,  but  it  has  never  been  so  difficult  to  give  a 
satisfying  answer  as  now.  In  the  days  when  the 
belief  in  the  divine  right  of  kings  was  general,  and 


ii4    THE  UNWRITTEN  CONSTITUTION. 

perhaps  universal,  a  satisfactory  answer  to  the  ques* 
tion  was  readily  obtained.  No  one  questioned  the 
right  of  the  Creator  of  all  things  to  command  our 
obedience  ;  and  if  the  kings  were  the  vicegerents  of 
God  upon  earth,  their  authority  was  derived  from 
God.  But  when  faith  in  the  divine  right  of  kings 
weakened,  and  was  finally  repudiated  by  the  leaders, 
and  perhaps  also  by  the  mass,  of  the  civilized  people 
of  the  world  as  a  fundamental  basis  for  governmen- 
tal authority,  the  philosophical  minds  of  the  world, 
under  the  lead  of  the  English  Hobbes  and  the 
French  Rousseau,  developed  as  a  substitute  the  doc- 
trine of  a  social  contract.  If  governmental  power 
was  not  derived  from  God,  it  must  be  derived  from 
the  people,  who  by  common  agreement  established 
the  societies  in  which  we  live.  This  social  contract 
involved,  when  the  people  entered  into  the  social 
organization,  the  surrender  of  rights  which  were 
enjoyed  by  individuals  in  a  state  of  nature,  so  far 
as  such  a  surrender  may  be  necessary  to  the  common 
weal.  None  of  these  dreamers  actually  believed 
that  while  the  people,  in  prehistoric  times,  were 
living  without  social  organization  of  any  kind,  they 
suddenly  came  to  the  conclusion  that  it  was  good 
for  them  to  organize  into  political  bodies  and  to  sub- 
ject themselves  to  certain  rules  for  the  common 
good.  They  did  not  believe  any  such  marvellous 
tale.  Starting  out  with  the  declaration  of  the  mutual 


STATE  SOVEREIGNTY.  115 

equality  of  all  men,  they  could  not  justify  in  reason 
the  acquisition  by  the  few  of  a  control  of  the  many, 
except  upon  the  hypothesis  that  this  subjection  of 
the  mass  to  the  few  was  voluntary.  But  that 
hypothesis  is  not  consistent  with  any  other  theory 
than  that  all  governments  are  founded  upon  a  social 
contract.  They  knew  that  the  contract  was  a  fiction, 
but  they  had  become  so  accustomed,  as  we  still  are, 
to  the  use  of  fictions  in  the  administration  of  the 
law,  that  they  were  not  conscious  of  the  violence 
done  to  the  facts  of  the  case.  The  only  way  of 
solving  the  metaphysical  difficulty  that  confronted 
them  was  in  the  use  of  this  fiction,  and  if  the  facts 
did  not  fit  and  support  the  hypothesis,  they  were  in 
a  frame  of  mind  to  pronounce  it  all  the  worse  for  the 
facts.1  This  doctrine  was  in  the  air  everywhere  when 
the  Government  and  Constitution  of  the  United 
States  were  established,  and  although  political  scien- 
tists have  generally  repudiated  it,  it  still  has  a  hold 
upon  the  popular  mind,  and  dominates  the  legal 
thought  of  this  country.8 

1  "  All  men  have  one  common  original  :  they  participate  in  one 
common  nature,  and  have  one  common  right.  No  reason  can  be 
advanced  why  one  man  should  exercise  any  power  or  pre-eminence 
over  his  fellow-creatures  more  than  another,  unless  they  have  volun- 
tarily vested  him  with  it.  Since,  then,  Americans  have  not,  by  any 
act  of  theirs,  empowered  the  British  Parliament  to  make  laws  for 
them,  it  follows  they  can  have  no  just  authority  to  do  it." — "  Hamil- 
ton's Works,"  I.,  6  (Lodge's  edition). 

'Not  many  months  ago  (1890)  the  Senate  of  the  United  States 
adopted  a  resolution  congratulating  the  people  of  Brazil  on  the  estab- 


u6    THE  UNWRITTEN  CONSTITUTION. 

The  form  which  the  theory  generally  assumes  in 
the  United  States  is  that  "  governments  are  insti- 
tuted among  men,  deriving  their  just  powers  from 
the  consent  of  the  governed  "  (Declaration  of  Inde- 
pendence). 

While  that  doctrine  is  true  in  the  sense  that  all 
governments  rest  upon  the  acquiescence  in  their 
decrees  of  the  great  mass  of  the  people  whom  they 
rule,  it  is  not  true  that  the  power  is  derived  from  the 
consent  of  all  the  governed.  Confessedly,  the  power 
to  control  the  actions  of  women  and  children  is  not 
derived  from  their  consent,  not  even  in  the  land  of 
so-called  universal  suffrage.  And  where  the  suffrage 
of  male  adults  is  limited  to  those  who  possess  an 
educational  and  property  qualification,  the  fallacy 
of  the  doctrine  becomes  still  more  manifest.  It  is 
absurd  to  say  that  the  thieves  and  thugs  who  infest 
society  ever  subscribed  their  consent  to  the  criminal 
laws  of  the  land.  They  have  not  even  acquiesced 
in  their  establishment,  except  so  far  as  an  over- 
powering force  has  compelled  them  to  yield  partial 
obedience. 

But  it  may  be  urged  that  by  this  doctrine  is  meant 
not  that  the  consent  of  each  and  every  individual  to 

lishment  by  them  of  a  government  depending  for  its  powers  upon  the 
consent  of  the  governed  ;  and  the  decisions  of  the  courts  and  the 
practical  treatises  on  constitutional  law  still  teem  with  references  to 
the  natural  rights  of  man,  and  a  surrender  of  a  part  of  them  upon 
entry  into  organized  society. — See  ante  Ch.  VI. 


STATE  SOVEREIGNTY.  117 

the  laws  of  the  country  must  be  obtained  before 
they  can  be  rightfully  enforced,  but  that  the  govern- 
ment derives  its  just  powers  from  the  consent  of  the 
majority  of  the  people  whom  it  rules.  But,  granting 
that  this  is  a  proper  limitation  upon  the  meaning  of 
the  postulate,  and  forbearing  to  do  more  than  make 
the  claim  that  the  limitation  is  a  fatal  admission  of 
the  insufficiency  of  the  theory,  since  it  would  not 
then  furnish  any  justification  for  the  control  of  the 
minority  by  the  majority,  even  then  the  theory  will 
not  fit  in  with  the  facts.  It  is  to  be  supposed  that 
no  one  would  question  the  truth  of  the  proposition 
that  only  those  rule  who  have  the  right  to  exercise 
the  electoral  franchise.  If  one  cannot  vote  in  the 
elections  of  the  country,  he  cannot  be  said  to  have 
given  his  consent  to  the  enactment  and  enforcement 
of  the  laws. 

Now  the  population  of  the  United  States  was  in 
1880  fifty  millions,  and  it  would  not  be  too  liberal 
an  estimate  to  put  the  population  in  1888  at  sixty 
millions.  I  believe  the  census  of  1890  will  show  a 
still  greater  increase.  It  will  without  doubt  be  con- 
ceded that  the  presidential  canvass  of  1888  was  a 
very  warm  contest,  and  brought  out  the  full  strength 
of  both  parties ;  and  that  almost  every  one  voted  in 
that  election  who  had  a  right  to  vote.  The  total 
number  of  votes  cast  at  that  election  for  all  the  pres- 
idential candidates  was  1 1,388,038.  The  eleven  mil- 


n8    THE  UNWRITTEN  CONSTITUTION. 

lions,  therefore,  determined  among  themselves  who 
shall  exercise  governmental  authority  over  the  sixty 
millions.  On  what  theory  of  consent  can  it  be  ex- 
plained that  the  eleven  millions  had  a  right  to  com- 
mand the  obedience  of  the  forty-nine  millions  ?  The 
authority  of  the  eleven  millions  and  of  their  govern- 
mental representatives,  to  control  the  actions  of  the 
silent,  non-participating  forty-nine  millions,  rests 
upon  no  other  legal  basis  than  that  which  supports 
the  right  of  the  law-makers  to  compel  the  thieves 
and  thugs  of  society  to  render  obedience  to  their 
edicts.  It  is  because  the  eleven  millions  have  the 
power  to  compel  the  obedience  of  any  one  of  the 
forty-nine  millions,  that  he  renders  obedience  to  the 
laws  of  the  country.  The  moral  influence  of  the 
eleven  millions  over  the  mass  of  the  forty-nine  mil- 
lions, rather  than  the  possession  of  the  superior 
physical  force,  is  what  secures  the  subjection  of  the 
many  to  the  commands  of  the  few.  But  still  the 
proposition  remains  true,  that  the  exercise  of  political 
power  by  the  few  does  not  rest  upon  the  consent  of 
the  subject  and  silent  majority,  but  upon  the  posses-  / 
sion  by  the  few  of  the  superior  strength,  both  moral 
and  material.  And  the  commands  of  these  few  con- 
stitute the  law,  whatever  may  be  their  inherent 
viciousness  or  inequity.  Moral  reasons  may  be 
assigned  for  pronouncing  a  particular  exercise  of 
authority  by  the  ruling  power  to  be  unrighteous  or 


STA  TE  SO  VEREIGNTY.  1 19 

unjust ;  but  no  exercise  of  authority  by  the  ruling 
power  in  the  land  can  ever  be  called  illegal. 

Not  only  is  it  true  as  a  fact,  that  governments  do 
not  derive  their  just  powers  from  the  consent  of  the 
governed,  but  it  is  not  even  believed  in  by  the  peo- 
ple, except  as  a  part  of  their  philosophy.  It  is  not 
a  part  of  their  practical  politics,  as  the  following 
clipping  from  a  current  number  of  a  leading  journal 
will  show : 

' '  We  shall  never  go  back  to  the  crude  attempt  of  the  Puritans  to 
secure  the  purity  of  the  ballot  by  confining  the  suffrage  to  church 
members  ;  but  we  may  well  question  whether  we  have  not  gone  quite 
too  far  in  the  opposite  direction,  in  giving  the  suffrage  to  everybody 
regardless  of  either  moral  or  intellectual  qualifications,  and  whether  it 
is  not  high  time  we  took  some  measures  to  make  conscience  more 
powerful  at  the  polling-booth."  l 

Who  is  meant  by  "  we  "  in  this  extract  ?  Until 
our  attention  is  directly  called  to  it,  it  does  not  ap- 
pear strange  to  us  that  the  distinguished  editor  should 
refer  to  some  aggregation  of  tlie  people,  as  having  in 
them  the  totality  of  governmental  power,  by  the 
personal  pronoun  "  we,"  without  any  other  descrip- 
tion. And  it  is  very  likely  that  the  great  majority  of 
the  readers  of  this  editorial,  if  they  had  been  ques- 
tioned, would  have  stated  that  the  writer  was  refer- 
ring to  the  power  of  the  people  to  regulate  their  con- 
cerns for  the  general  welfare.  But  that  could  not 
have  been  the  thought  of  the  writer;  nor  did  the 

1  Christian  Union,  editorial,  "  Political  Puritanism,"  Jan.  i,  1890. 


120    THE  UNWRITTEN  CONSTITUTION. 

readers,  whether  they  indorsed  or  disapproved  the 
proposition,  base  their  conclusion  upon  the  funda- 
mental principle  that  the  people  en  masse  were 
referred  to  under  the  personal  pronoun  "we."  For 
it  is  manifestly  absurd  to  urge  that  the  mass  of  the 
people,  in  whom  it  is  claimed  is  reposed  all  political 
power,  should  confine  the  exercise  of  suffrage  to  the 
few.  Whether  consciously  or  unconsciously,  the 
writer  must  have  had  in  mind  the  antagonism  of 
good  and  evil  in  politics,  and  under  the  personal  pro- 
noun "  we "  he  was  referring  to  those  individual 
units  of  the  political  world,  which  constituted  the 
good  elements,  and  which  had  the  power  to  control 
the  evil  elements.  And  it  does  not  need  to  go  to  any 
length  to  show  that  the  good  elements  in  the  body 
politic  are  not  always  in  a  numerical  majority,  eveix 
when  they  effectively  control  the  actions  of  the 
vicious  and  evil.  We  have  in  this  casual  instance,— 
taken  from  a  journal  noted  for  its  carefully  prepared 
and  well-digested  editorials  and  news-matter, — a 
striking  proof  of  the  practical  want  of  faith  in  the 
people  in  the  doctrine  of  universal  or  popular  suf- 
frage. They  do  not  really  believe  that  political 
power  resides  in  the  mass  of  the  people.  When  we 
lay  aside  our  political  dreaming,  and  come  down  to 
a  consideration  of  the  plain  facts  of  political  science, 
we  are  forced  to  the  conclusion  that  there  is  no  com- 
munity in  the  world  whose  inhabitants  stand  on  an 


STATE  SOVEREIGNTY.  121 

absolute  equality  before  the  law,  and  hence  no  com- 
munity in  whose  entire  population  the  supreme 
power  may  be  said  to  be  vested.  All  governments 
are  either  monarchies  or  oligarchies.1 

The  fallacy  of  the  doctrine  that  the  government 
"derives  its  just  powers  from  the  consent  of  the 
governed,"  is  still  further  exposed  when  it  is  remem- 
bered that  most  of  the  laws  now  in  force  were 
enacted  before  the  present  generations  were  born. 
They  acquiesce  in  their  enforcement,  or  rather  the 
laws  are  enforced  against  the  rebellious,  because  the 
present  generations  in  the  mass  have  acquired  the 
habit  of  voluntarily  obeying  them,  and  desire  their 
enforcement  against  others,  in  order  to  prevent 
injury  to  themselves.  And  it  is  also  true  that  the 
laws  will  cease  to  be  enforced  as  soon  as  public 
opinion,  under  the  operation  of  the  social  forces, 
undergoes  a  change,  and  those  who  form  public 
opinion  generally  justify  the  doing  of  the  things  for- 
bidden by  the  pre-existing  rules  of  law.  But  it  can- 
not be  said  that  the  enactment  of  any  law  rests  for 

1  "  Nor,  again,  can  sovereignty  be  said  to  reside  in  the  entire  com- 
munity— an  error  to  which  French  writers  on  public  law  seem 
especially  liable.  Their  meaning  may  perhaps  be  that  no  body  of 
individuals  except  the  entirety  of  the  people  ought  to  be  recognized  as 
superior  ;  but  a  dogma  like  this  is  something  very  different  from  the 
statement  of  a  fact ;  and  the  truth  is  that  no  government  correspond- 
ing with  the  description  exists  in  the  world.  All  politics  are  either 
monarchies  or  oligarchies,  since  even  in  the  most  popular  women  and 
minors  are  excluded  from  political  functions." — Sir  Henry  Maine,  in 
"  Papers,"  etc.  (1855),  vol.  i.,  pt.  i.f  p.  30. 


122    THE  UNWRITTEN  CONSTITUTION. 

its  authority  upon  the  consent  of  the  governed.  The 
living  part  of  municipal  law — having  no  reference  to 
the  dead  letters — consists  of  those  rules  of  human 
conduct  which  the  great  mass  of  people  habitually 
and  spontaneously  obey,  and  which  they  compel  the 
rebellious  minority  to  obey,  in  order  to  prevent 
injury  to  the  law-abiding  individual  or  to  the  com- 
monwealth. If  that  be  the  true  definition  of  the 
law,  then  all  governmental  authority  rests  upon  the 
commands,  not  of  a  dead  generation,  but  of  a  living 
generation.  And  even  the  treaties  and  other  com- 
pacts which  a  past  generation  makes, — leaving  the 
ethical  element  out  of  consideration, — are  legally 
binding  upon  the  present  generation  only  so  far  as 
they  acquiesce  in  their  observance,  or  are  required 
by  a  superior  force  to  observe  them. 

The  binding  authority  of  law,  therefore,  does  not 
rest  upon  any  edict  of  the  people  in  the  past ;  it  rests 
upon  the  present  will  of  those  who  possess  the  politi- 
cal power. 

The  other  political  fallacy  is  wrapped  up  in  the 
notion  of  sovereignty.  Political  writers  of  all  shades 
of  opinion  speak  of  the  sovereignty  of  the  state,  the 
sovereignty  of  the  king,  the  sovereignty  of  the  people ; 
and  our  own  history  is  filled  with  the  discussions  con- 
cerning the  location  of  sovereignty  in  a  federal  state. 
The  advocates  of  the  State  Rights'  theory  maintain 
that,  since  the  Federal  Government  was  the  creation 


STATE  SOVEREIGNTY.  123 

of  the  States,  sovereignty  must  reside  in  the  States 
as  separate  bodies-politic,  while  the  National  parties 
claim  that  sovereignty  resides  in  the  people  of  the 
United  States  as  one  body-politic.  Notwithstanding 
the  looseness  which  characterizes  the  use  of  the  term 
"  sovereignty  "  in  these  discussions,  the  elements  of 
personality  and  of  omnipotence  are  always  present, 
more  or  less,  in  the  meaning  attached  to  the  term, 
showing  a  close  adherence  to  its  original  meaning, 
when  there  was  one  individual  who  claimed  to  be 
the  omnipotent  ruler  of  the  people  by  divine  right. 
Hence  the  claim  is  made  that  sovereignty  is  indivisi- 
ble and  subject  to  no  legal  limitation.  As  long  as 
this  definition  of  sovereignty  is  applied  to  an  abso- 
lute monarchy — for  example,  like  the  Empire  of 
Russia — no  serious  difficulties  are  experienced  in 
making  use  of*  the  notion  of  sovereignty  in  the  prac- 
tical explanations  of  the  phenomena  of  political  life. 
But  when  the  notion  is  applied  to  a  popular  govern- 
ment, a  government  which,  whatever  its  form,  is 
founded  upon  a  recognition  of  the  repose  of  the 
ultimate  political  power  in  some  part  of  the  people, 
the  most  painful  sort  of  confusion  results.  I  will  not 
attempt  to  give  in  this  connection  a  summary  of  the 
views  entertained  by  the  political  writers  of  Europe 
and  America  concerning  the  location  and  character 
of  the  sovereignty  in  a  country  ruled  by  a  popular 
government.  Such  explanations  are  to  be  found  in 


124    THE  UNWRITTEN  CONSTITUTION. 

many  books  and  need  not  be  repeated.  For  it  seems 
to  me  that  if  the  reader  has  up  to  this  point  con- 
ceded the  correctness  of  my  propositions  concerning 
the  origin  and  development  of  law,  both  public  and 
private,  he  will  have  no  need  for  these  political  ab- 
stractions. To  him  sovereignty  has  no  practical 
meaning  which  does  not  make  it  synonymous  with 
supreme  power  ;  and  the  sovereign  or  sovereigns  are 
the  individual  or  individuals  who  together  constitute 
the  repository  of  the  supreme  power  of  the  land  ; 
not  the  aggregation  of  individuals  which  have  been 
declared  by  a  past  generation  to  be  the  repository  of 
the  supreme  power  of  the  land,  but  that  aggregation  of 
individuals  which  do  now  possess  the  supreme  power 
of  the  land.  Hence  the  written  Constitution  cannot 
locate  the  sovereignty  of  this  country.  It  may  be 
claimed,  without  the  fear  of  successful  contradiction, 
that  prior  to  the  present  Constitution  sovereignty 
resided  in  the  States  ;  because  we  know  that  the 
Federal  Government  had  not  the  power  to  compel  the 
obedience  of  the  States,  and  was  under  the  Articles 
of  Confederation  denied  all  control  over  the  individ- 
ual citizens.  And  it  may  also  be  claimed  that  the 
present  written  Constitution  contains  nothing  which 
might  serve  as  a  transfer  of  sovereignty  from  the 
States  to  the  people  of  the  United  States.  But  that 
Constitution  did  make  a  transfer  possible  by  giving 
to  the  Federal  Government  direct  control  of  the  indi- 


STATE  SOVEREIGNTY.  125 

vidual.  Then  began  a  contest  for  the  supremacy 
between  these  two  forces,  the  forces  of  disintegration 
and  the  forces  of  centralization.  According  to  the 
definition  of  sovereignty  here  given,  its  location  re- 
mained doubtful  and  could  not  be  settled  until  the 
result  of  the  civil  war  demonstrated  the  superiority 
of  the  forces  of  centralization. 

It  would  seem  plain,  therefore,  that  the  right  of 
secession  cannot  be  proved  or  disproved  by  reference 
to  the  written  words  of  the  Constitution,  or  to  the 
opinions  and  intentions  of  those  who  helped  to  frame 
the  Constitution  and  found  the  government.  For, 
since  all  law  derives  its  binding  authority  from  the 
present  commands  of  those  who  now  control  and 
mould  public  opinion,  and  not  from  any  original 
compact  or  consent  of  the  governed,  the  supreme 
power  is  in  that  aggregation  of  individuals,  which 
now  has  the  ability  to  enforce  obedience  to  its  com- 
mands. The  people  of  the  United  States  exercised 
supreme  power  over  the  State  of  South  Carolina  and 
prohibited  its  secession  from  the  Union  for  the  same 
reason  and  on  the  same  ground  as  they  exercised 
supreme  power  over  the  Mexicans,  who  became 
American  citizens,  in  consequence  of  a  cession  by 
Mexico  to  the  United  States  of  the  territory  in  which 
they  lived.  It  was  because  in  both  cases  the  United 
States  had  the  ability  to  assert  supreme  power  over 
the  objecting  individuals.  The  fact  that  the  United 


126    THE  UNWRITTEN  CONSTITUTION. 

States  hold  these  peoples  in  subjection  makes  the 
people  of  the  United  States  the  depositary  of 
sovereign  power ;  and  whenever  that  fact  ceases  to 
exist,  and  the  supreme  power  has  in  fact  been  trans- 
ferred to  some  other  aggregation  of  individuals, 
sovereignty  will  no  longer  be  in  the  people  of  the 
United  States. 

But  if  that  be  the  case,  one  might  ask  what  be- 
comes of  that  clause  of  the  Declaration  of  Indepen- 
dence, in  which  it  is  claimed  "  that,  whenever  any  form 
of  government  becomes  destructive  of  these  ends 
(z.^,  the  guaranty  of  the  inalienable  rights  of  man), 
it  is  the  right  of  the  people  to  alter  or  abolish  it,  and 
to  institute  a  new  government,  laying  its  foundation 
on  such  principles,  and  organizing  its  powers  in  such 
form,  as  to  them  shall  seem  most  likely  to  effect  their 
safety  and  happiness "  ?  What  is  the  meaning  of 
this  declaration,  if  it  be  true  that  that  aggregation  of 
individuals  is  sovereign,  which  has  the  actual  ability 
to  enforce  obedience? 

The  difficulty  is  occasioned  only  by  a  confusion  of 
abstract  moral  and  actual  legal  claims.  A  claim  is 
abstractly  moral  or  immoral,  rightful  or  wrongful, 
according  to  its  inherent  character  and  its  good  or 
bad  effect  upon  the  general  welfare,  independent  of  the 
ability  to  assert  and  compel  its  recognition  ;  but  it  is 
legal  or  illegal,  right  or  wrong  legally,  as  it  accords 
with,  or  opposes,  the  commands  of  those  who  pos- 


STATE  SOVEREIGNTY.  127 

sess  the  political  power  of  the  country.  It  is  evident, 
therefore,  that  the  exercise  of  the  right,  claimed  in 
the  American  Declaration  of  Independence,  to  alter 
or  abolish  any  government  which  fails  to  secure  to 
the  individual  protection  to  life,  liberty,  and  the  pur- 
suit of  happiness,  however  justifiable  in  morals  it 
might  be  at  times,  is  never  legal,  always  illegal ;  for 
the  aim  of  those  who  exercise  this  right  is  to  over- 
throw those  who  are  the  existing  sovereigns,  and  whose 
commands  are  the  law.  Revolutions  are  nothing 
more  than  successful  rebellions,  while  rebellions  differ 
from  revolutions  only  in  the  fact  that  the  former  are 
unsuccessful.  Both  have  their  beginning  in  unlawful 
acts,  even  though  the  cause  be  righteous.  But  just 
as  soon  as  the  rebellion  becomes  a  revolution,  the 
former  sovereign  power  is  overthrown,  and  another 
power,  represented  by  the  revolutionists,  takes  its 
place.  With  this  shifting  of  the  supreme  power,  a 
radical  change  is  effected  in  the  character  of  the 
actions  of  the  opposing  parties.  The  acts  of  the 
\  revolutionists  then  become  legal,  while  the  acts  of  the 
\  supporters  of  the  old  government  become  illegal. 

We  are  now  prepared  to  state  the  conclusion  of  the 
argument.  If  the  powers  of  government  are  derived 
from  the  ability  of  those  who  command  to  enforce 
obedience,  and  the  sovereignty  of  a  nation  resides  in 
those  who  for  the  time  being  possess  the  political 
power,  the  right  of  secession  is  nothing  more  than 


128    THE  UNWRITTEN  CONSTITUTION. 

the  right  of  revolution,  morally  justifiable  or  unjus- 
tifiable, according  to  the  character  of  the  causes 
which  induced  its  exercise,  but  never  legal,  until  its 
successful  exercise  has  wrought  a  transfer  of  the 
political  power  from  one  aggregation  of  individuals 
£o  another. 


CHAPTER  X. 

THE    UNITED    STATES   GOVERNMENT    ONE    OF    ENU- 
MERATED  POWERS. 

FREQUENTLY,  during  the  first  century  of  our 
national  existence,  the  government  of  the  United 
States  has  assumed  powers,  which  were  highly  essen- 
tial to  the  promotion  of  the  general  welfare,  but 
which  were  not  expressly  delegated  to  the  Federal 
Government.  The  exercise  of  such  powers  has  always 
met  with  the  vehement  objection  of  the  party  in 
opposition — although  each  of  the  great  national 
parties  has  in  turn  exercised  such  questionable  pow- 
ers, whenever  public  necessities  or  party  interests 
seemed  to  require  it — the  objection  being  that  the 
Constitution  did  not  authorize  the  exercise  of  the 
power,  since  there  was  no  delegation  of  it  by  the 
Constitution.  Popular  opinion,  concerning  the  fun- 
damental character  of  the  Federal  Government,  which 
had  been  lately  established,  was  formulated  in  the 
adoption  of  the  tenth  amendment  to  the  Constitu- 
tion, which  provides  that  "  the  powers,  not  delegated 
to  the  United  States  by  the  Constitution,  nor  pro- 
9  129 


1  3o    THE   UNWRITTEN  CONSTITUTION. 

hibited  by  it  to  the  States,  are  reserved  to  the  States, 
respectively  or  to  the  people."  Relying  upon  this 
amendment  as  the  authority  for  it,  it  has  become  the 
generally  recognized  rule  of  constitutional  construc- 
tion, that,  adopting  the  language  of  an  eminent 
writer  on  constitutional  law,  "  the  government  of 
the  United  States  is  one  of  enumerated  powers,  the 
National  Constitution  the^instrumGnt  which 


specifies,  and  in  which  the  authority  should  be  found 
for  the  exercise  of,  any  power  which  the  national 
government  assumes  to  possess.  In  this  respect  it 
differs  from  the  constitutions  of  the  several  States, 
which  are  not  grants  of  powers  to  the  States,  but 
which  apportion  and  impose  restrictions  upon  the 
powers  which  the  States  inherently  possess."  1 

The  so-called  "  strict  constructionists  "  have  main- 
tained that  the  United  States  can  exercise  no  power 
but  what  is  expressly  granted  by  the  Constitution. 
But  this  rule  was  at  times  applied  so  rigidly  by  the 
party  in  opposition,  whenever  it  was  proposed  to 
prevent  the  enactment  of  a  law  which  was  obnoxious 
to  them,  that  the  right  was  denied  to  the  United 
States  Government  to  exercise  even  those  rights 

1  Cooley,  Const.  Lim.,  10,  n.  See,  also,  to  the  same  effect,  Mar- 
shall, Ch.-J.,  in  Gibbons  v.  Ogden,  9  Wheat.,  i  ;  Story,  J.,  in  Martin 
v.  Hunter's  Lessee,  I  Wheat.,  304,  326  ;  Waite,  Ch.-J.,  in  United 
States  v.  Cruikshanks,  92  U.  S.,  542  ;  Calder  v.  Bull,  3  Dall.,  386; 
Trade  Mark  Cases,  loo  U.  S.,  82  ;  Briscoe  v.  Bank  of  Kentucky,  n 
Pet.,  257;  Oilman  v.  Philadelphia,  3  Wall.,  713;  and  numerous 
judicial  utterances  of  the  same  import  in  the  State  reports. 


UNITED  STATES  GOVERNMENT.      131 

which,  although  not  expressly  delegated,  were  so 
necessary  to  the  effectuation  of  the  express  powers, 
that  it  cannot  be  supposed  that  the  framers  of  the 
Constitution  did  not  intend  to  grant  them.  In 
numerous  instances  this  question,  of  constitutional 
construction  has  been  brought  for  settlement  before 
the  Supreme  Court  of  the  United  States ;  and  it  is 
now  firmly  settled  that  the  Federal  Government  can 
exercise,  not  only  the  powers  which  are  expressly 
granted,  but  also  those  powers,  the  grant  of  which 
can  be  fairly  implied  from  the  necessity  of  assuming 
them,  in  order  to  give  effect  to  the  express  grant  of 
powers.  "  The  government  of  the  United  States  can 
claim  no  powers  which  are  not  granted  to  it  by  the 
Constitution  ;  and  the  powers  actually  granted  must 
be  such  as  are  expressly  granted,  or  given  by  neces- 
sary implication."  ' 

Although  the  United  States  Supreme  Court  has 
never,  in  its  numerous  decisions  on  constitutional 
construction,  departed  from  the  doctrine  that  the 
United  States  Government  may  exercise  powers 
which  are  implied  from  the  express  grant  of  powers, 
it  is  worthy  of  note  that  for  nineteen  years  one 
justice — Mr.  Justice  Daniel  of  Virginia — consistently 
dissented  from  every  judgment  of  the  court  which 
was  based  upon  the  recognition  of  any  implied 

1  Story,  J.,  in  Martin  v.  Hunter's  Lessee,  I  Wheat.,  304,  326; 
Marshall,  Ch.-J.,  in  Gibbons  v.  Ogden,  9  Wheat.,  I,  187,  etc.  See 
preceding  note. 


i32    THE  UNWRITTEN  CONSTITUTION. 

power.  His  persistent  claim  was  that  "  the  Consti- 
tution itself  is  nothing  more  than  an  enumeration  of 
general  abstract  rules,  promulged  by  the  several 
States  for  the  guidance  or  control  of  their  creature  or 
agent,  the  federal  government,  which  for  their  ex- 
clusive benefit  they  were  about  to  call  into  being. 
Apart  from  these  abstract  rules,  the  Federal  Govern- 
ment can  have  no  functions  and  no  existence."  1 

This  doctrine  of  implied  powers  gave  to  the  Fed- 
eral Constitution  that  elasticity  of  application  without 
which  the  permanency  of  the  Federal  Government 
would  have  been  seriously  endangered.9  But  at  the 
same  time  it  produced  the  very  effect,  in  a  greater 
or  less  degree,  the  fear  of  which  urged  the  strict  con- 
structionists  to  oppose  its  adoption,  viz. :  that  it 
would  open  the  way  to  the  most  strained  construc- 
tion of  express  grants  of  power,  in  order  to  justify 
the  exercise  of  powers  that  could  not  be  fairly  im- 
plied from  the  express  grants.  Indeed,  the  country 

Opinion  of  Justice  Daniel  in  Marshall  v.  B.  &  O.  R.  R.  Co.,  16 
How.,  346. 

3  ' '  While  the  principles  of  the  Constitution  should  be  preserved 
with  a  most  guarded  caution,  it  is  at  once  the  dictate  of  wisdom  and 
enlightened  patriotism  to  avoid  that  narrowness  of  interpretation 
which  would  dry  up  all  its  vital  powers,  or  compel  the  government-^ 
as  was  done  under  the  Confederation — to  break  down  all  constitu- 
tional barriers,  and  trust  for  its  vindication  to  the  people,  upon  the 
dangerous  political  maxim  that  the  safety  of  the  people  is  the  supreme 
law  (sains  populi  suprema  lex),  a  maxim  which  might  be  used  to  justify 
the  appointment  of  a  dictator,  or  any  other  usurpation." — Story  on 
Constitution,  §  1,292.  See  Chapter  VII.  on  The  Suspension  of  the 
Writ  of  Habeas  Corpus  during  the  Civil  War. 


UNITED  STATES  GOVERNMENT.      133 

has  often  been  presented  with  the  spectacle  of 
United  States,  as  well  as  State,  judges  and  legisla, 
tors  engaged  in  justifying  questionable  but  necessary 
assumptions  of  power  by  the  general  government,  by 
laboriously  twisting,  turning,  and  straining  the  plain 
literal  meaning  of  the  constitutional  provisions,  seek- 
ing to  bring  the  powers  in  question  within  the  opera- 
tion of  some  express  grant  of  powers.  For  illustra- 
tion I  will  refer  only  to  two  extreme  cases — the 
Louisiana  purchase,  and  the  issue  of  treasury  notes 
with  the  character  of  legal  tender. 

In  the  case  of  the  Louisiana  purchase,  the  exercise 
of  the  questionable  power  was  so  plainly  beneficial 
to  the  whole  country  that  it  was  generally  acquiesced 
in.  But  the  claim  of  an  express  or  implied  power  to 
make  the  purchase  was  so  palpably  untenable  that 
the  transaction  has  been  tacitly  admitted  to  have 
been  an  actual  but  necessary  violation  of  the  Consti- 
tution. Even  Mr.  Jefferson,  to  whom  the  credit  of 
effecting  the  purchase  of  Louisiana  was  justly  and 
chiefly  due,  was  of  the  opinion  that  there  was  no 
warrant  in  the  Constitution,  for  the  exercise  of  such 
a  power,  and  recommended  the  adoption  of  an 
amendment  to  the  Constitution  ratifying  that  pur- 
chase. In  speaking  of  the  objections  which  were 
urged  against  the  project  Judge  Story  says : 

"  The  friends  of  the  measure  were  driven  to  the  adoption  of  the 
doctrine  that  the  right  to  acquire  territory  was  incident  to  national 
sovereignty  ;  that  it  was  a  resulting  power,  growing  necessarily  out 


i34    THE  UNWRITTEN  CONSTITUTION. 

of  the  aggregate  power  confided  by  the  Federal  Constitution,  that  the 
appropriation  might  justly  be  vindicated  upon  this  ground,  and  also 
upon  the  ground  that  it  was  for  the  defence  and  general  welfare."  1 

An  equally  remarkable  case  of  a  strained  construc- 
tion of  constitutional  provisions  is  the  exercise  by 
Congress  of  the  power  to  make  the  United  States 
treasury  notes  legal  tender,  in  payment  of  all  debts, 
public  and  private. 

The  exercise  of  this  power  is  not  so  plainly  bene- 
ficial ;  on  the  contrary,  it  has  been  considered  by 
many  able  publicists  to  be  both  an  injurious  and  a 
wrongful  interference  with  the  private  rights  of  the 
individual.  For  this  reason,  the  assumption  of  this 
power  by  the  National  Government  has  not  met  with 
a  general  acquiescence ;  and  the  constitutionality  of 
the  acts  of  Congress,  which  declared  the  treasury 
notes  to  be  legal  tender,  has  been  questioned  in 
numerous  cases,  most  of  which  have  found  the  way 
to  the  Supreme  Court  of  the  United  States.  In 
Hepburn  v.  Griswold,8  the  acts  of  Congress  of  1862 
and  1863  were  declared  to  be  unconstitutional,  so 
far  as  they  make  the  treasury  notes  of  the  United 
States  legal  tender  in  the  payment  of  pre-existing 
debts. 

1  Story  on  Constitution,  §  1,286.  I  do  not  wish  it  to  be  inferred 
that  I  am  unaware  of  the  opinion  of  Chief-Justice  Marshall,  that  the 
power  to  purchase  foreign  territory  is  to  be  implied  from  the  power 
to  make  treaties  with  foreign  nations.  See  Am.  Ins.  Co.  v.  Canter, 
I  Pet.,  511,  542.  But  the  claim  is  made  that  this  is  one  of  the  cases  in 
which  the  doctrine  of  implied  powers  has  been  improperly  applied. 

9  8  Wall.  ,603, 


UNITED  STATES  GOVERNMENT.      135 

In  the  Legal-tender  cases,1  the  opinion  of  the 
court  in  Hepburn  v.  Griswold  was  overruled,  and 
the  acts  of  1862  and  1863  were  declared  to  be  con- 
stitutional in  making  treasury  notes  legal  tender, 
whether  they  applied  to  existing  or  subsequent 
debts,  the  burden  of  the  opinion  being  that  Con- 
gress has  the  right,  as  a  war  measure,  to  give  to 
these  notes  the  character  of  legal  tender.  In  1878 
Congress  passed  an  act  providing  for  the  reissue  of 
the  treasury  notes,  and  declared  them  to  be  legal 
tender  in  payment  of  all  debts.  In  a  case  arising 
under  the  act  of  1878,  the  Supreme  Court  of  the 
United  States  has  finally  affirmed  the  opinion  an- 
nounced in  12  Wallace,  and  held  further  that  the 
power  of  the  government  to  make  its  treasury  notes 
legal  tender,  whenever  the  public  exigencies  require 
it,  being  admitted,  it  becomes  a  question  of  legisla- 
tive discretion  when  the  public  welfare  requires  the 
exercise  of  the  power.8  A  perusal  of  these  cases 
will  disclose  the  fact  that  the  members  of  the  court 
and  the  attorneys  in  the  causes  have  not  always 
referred  to  the  same  constitutional  provisions  for 
the  authority  to  make  the  treasury  notes  legal 
tender.  Some  have  claimed  it  to  be  a  power  im- 
plied from  the  power  to  levy  and  carry  on  war ; 
some  refer  it  to  the  power  to  borrow  money,  while 
others  claim  it  may  be  implied  from  the  grant  of 

1  12  Wall.,  457.  9  Juillard  v.  Greenman,  no,  U.  S.,  421. 


136    THE  UNWRITTEN  CONSTITUTION. 

power  to  coin  money  and  regulate  the  value  of  it. 
It  will  not  be  necessary  for  the  present  purpose  to 
demonstrate  that  this  power  is  not  a  fair  implication 
from  the  express  powers  mentioned.  A  careful  read- 
ing of  all  the  opinions  in  the  cases  referred  to  will  at 
least  throw  the  matter  into  hopeless  doubt  and 
uncertainty,  if  it  does  not  convince  the  reader 
that  in  assuming  this  position  violence  has  been 
done  by  the  court  to  the  plain  literal  meaning  of 
the  words. 

The  cases  are  not  rare  in  which  forced  construc- 
tion has  been  resorted  to,  in  order  to  justify  the 
exercise  of  powers  which  are  deemed  necessary  by 
public  opinion.  'Nor  can  we  expect  to  prevent  alto- 
gether this  tendency  to  strain  and  force  the  literal 
meaning  of  the  written  Constitution,  in  order  to 
bring  it  into  conformity  with  that  unwritten  consti- 
tution, which  is  the  real  constitution,  and  which 
embodies  the  living  rules  of  conduct ;  for  this  un- 
written constitution  is  steadily  but  slowly  changing 
under  the  pressure  of  popular  opinion  and  public 
necessities,  checked  only  by  the  popular  reverence 
for  the  written  word,  f  But  it  is  wise  to  eliminate 
every  thing  which  is  calculated  to  increase  this 
strain  ;  and  if  the  strain  is  increased  in  any  case  by 
an  erroneous  interpretation  of  the  grammatical 
meaning  of  the  written  Constitution,  it  is  a  public 
benefit  to  point  this  error  out,  even  though  it  be- 


UNITED  STATES  GOVERNMENT.      137 

comes  necessary  to  claim  that  the  framers  of  the 
Constitution  did  not  understand  the  literal  meaning 
of  their  own  enactment.  The  attempt  will  be  made 
to  show  that  this  was  the  case  with  the  accepted  in- 
terpretation of  the  Tenth  Amendment  to  the  Federal 
Constitution. 

A  stable  and  enduring  government  cannot  be  so 
constructed  that  no  branch  of  it  cannot  exercise  a 
given  power  unless  it  is  granted  by  the  Constitu- 
tion, expressly  or  by  necessary  implication,  unless 
one  escapes  from  the  dilemma  by  claiming  any 
valuable  power  as  implied  from  the  power  to  pro- 
mote the  general  welfare.  A  government,  as  a 
totality,  may  properly  be  compared  to  a  general 
agent,  who  does  not  require  any  specific  delegation 
of  power  to  do  an  act,  provided  it  falls  within  the 
scope  of  the  agent's  general  authority.  A  govern- 
ment, like  a  general  agent,  may  have  express  restric- 
tions or  limitations  upon  its  general  powers.  But  in  ^ 
the  absence  of  a  prohibition,  the  right  to  exercise  a 
given  power,  which  falls  within  the  legitimate  scope 
of  governmental  authority,  must  be  vested  in  some 
branch  of  the  government.  'As  a  general  proposi- 
tion, I  believe  the  foregoing  statement  that  all  gov- 
ernments can  exercise  any  governmental  power, 
which  is  not  prohibited,  as  of  necessity,  would  pass 
without  question.  Criticism  is  to  be  expected  only 
when  the  attempt  is  made  to  apply  the  doctrine  to 


138    THE  UNWRITTEN  CONSTITUTION. 

the  composite  federal  state.  Undertaking  the  proof 
of  the  correctness  of  this  rule,  in  its  application  to 
the  federal  state,  in  order  to  put  the  whole  matter 
clearly  before  the  reader,  I  wish,  with  the  aid  of  a 
diagram,  to  classify  and  distinguish  the  powers  of 
government  in  the  division  of  them  between  the  two 
great  parts  of  the  federal  state.  It  is  as  follows : 


Outer  circle  represents  totality  of  governmental  powers. 
Circle  A  =  powers  delegated  to  the  United  States. 

B  =  powers  reserved  to  the  States. 
Segment  C  =  concurrent  powers. 

"        D  =  powers  prohibited  to  both  branches  of  government. 
"        E  =      "  "  the    States,   but  neither    pro- 

hibited nor  delegated  to  the  United  States. 

v/  The  question  for  discussion  is  whether  the  United 
States  Government  may  exercise  a  power  which  is 
prohibited  to  the  States,  but  which  is  neither  pro- 
hibited nor  delegated  to  the  General  Government. 
The  claim  is  made,  on  the  general  principle  enunci- 
ated above,  that  from  the  necessity  of  the  case  the 


UNITED  STATES  GOVERNMENT.      139 

United  States  Government  can  exercise  such  a  power, 
for  it  would  be  impossible  to  construct  a  government, 
no  branch  of  which  can  exercise  a  necessary  power, 
unless  it  has  been  granted.  As  a  proposition  of  fact, 
I  need  only  refer  to  the  two  cases  of  governmental  ac- 
tion without  express  authority,  heretofore  explained, 
in  order  to  establish  its  truth.  Whatever  the  writ- 
ten Constitution  may  provide  on  this  question,  the 
fact  is  that  the  United  States  Government  does  exer- 
cise powers  which  are  not  delegated  to  it  by  the  written  . 
Constitution.  I  do  not  mean  to  say  that  constitu- 
tional conventions  never  attempt  to  lay  down  a  dif- 
ferent rule.  On  the  contrary,  if  the  great  men  who 
have  contributed  to  the  building  up  of  the  American 
constitutional  law  have  been  free  from  error  in  their 
construction  of  the  tenth  amendment  of  the  Federal 
Constitution,  the  adoption  of  that  amendment  was 
an  attempt  to  do  this  impossible  thing,  and  the  at- 
tempt has  resulted  in  repeated  violations  of  the 
Constitution,  as  construed  by  them,  by  the  assump- 
tion by  Congress  of  powers  which  were  not  expressly 
delegated  nor  fairly  inplied.  The  Louisiana  pur- 
chase and  the  Legal-tender  cases,  already  referred 
to,  furnish  sufficient  illustration  of  the  truth  of  the 
statement.  Cases  of  the  same  character  will  surely 
arise  from  time  to  time,  and  each  repetition  will 
diminish  the  popular  reverence  for  the  written  Con- 
stitution,— an  evil  to  be  deprecated  by  every  earnest 


i4o    THE  UNWRITTEN  CONSTITUTION. 

jurist.  The  difficulty  in  many  of  the  cases  lies  in 
the  accepted  interpretation  of  the  tenth  amend- 
ment. 

According  to  the  prevailing  interpretation  of  that 
amendment,  in  order  that  the  United  States  may  by 
treaty  make  a  purchase  of  foreign  territory,  or  de- 
clare by  act  of  Congress  that  the  treasury  notes  shall 
be  legal  tender  in  payment  of  all  public  and  private 
debts,  the  power  must  be  granted  by  the  Constitu- 
tion. It  is  clear  that  the  State  governments  cannot 
exercise  these  powers,  for  the  exercise  of  them  is 
expressly  prohibited  to  the  States.  But  if  it  can  be 
shown  that  this  interpretation  of  the  tenth  amend- 
ment does  not  bring  out  the  true  grammatical  mean- 
ing ;  that  the  tenth  amendment  does  not  apply  to 
such  cases,  it  must  be  conceded  that  the  United 
States  may  exercise  these  and  other  like  powers,  al- 
though they  are  not  expressly  or  impliedly  granted.1 

There  is  no  reason  why  the  real  meaning  of  that 
amendment  should  not  be  given  effect  in  construing 
the  constitutionality  of  such  acts.  For  no  rule  of 
construction  is  binding  upon  the  courts  and  other 
departments  of  the  government  which  does  not  rest 
for  its  authority  upon  some  provision  of  the  written 
Constitution.  The  intentions  of  the  framers  of  the 

1  It  is  claimed,  however,  by  the  author  elsewhere,  that  the  power 
to  make  treasury  notes  legal  tender  is  prohibited  by  the  Constitution 
to  both  the  United  States  and  the  States. — See  Tiedeman's  "  Limita- 
tions of  Police  Power,"  §  90. 


UNITED  STATES  GOVERNMENT.      141 

Constitution  are  not  at  all  binding  upon  the  present 
generation,  except  so  far  as  they  have  been  em- 
bodied in  the  written  word.1 

The  tenth  amendment  reads  as  follows :  "  The 
powers,  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively  or  to  the  peo- 
ple." It  is  clear  that,  if  a  given  power  is  not  prohib-  " 
ited  to  the  States,  the  General  Government  cannot 
exercise  it,  unless  there  is  an  express  delegation  of 
the  power.  The  amendment  declares  that  such 
powers  are  reserved  to  the  States  or  to  the  people. 
But  if  a  given  power  is  prohibited  to  the  States,  but 
not  delegated  to  the  United  States — the  right  to 
purchase  foreign  territory,  for  example, — can  it  be 
said  that  under  this  amendment  the  exercise  of  this 
power  is  reserved  to  the  States  ?  The  very  prohibi- 
tion to  the  States  forbids  this  construction.  It  may 
be  claimed  that  in  such  a  case  the  power  would  be  6 
reserved  "to  the  people."  But  that  claim  cannot 
be  sustained.  The  reservation  of  the  powers  (re- 
ferred to  in  the  amendment)  in  the  alternative  "  to 
the  States  respectively  or  to  the  people,"  evidently 
involves  a  consideration  of  the  possibility  that  the 

1  "  As  men  whose  intentions  require  no  concealment  generally  em- 
ploy the  words  which  most  directly  and  aptly  express  the  idea  they  * 
intend  to  convey,  the  enlightened  patriots  who  framed  our  Constitu- 
tion, and  the  people  who  adopted  it,  must  be  understood  to  have 
employed  words  in  their  natural  sense,  and  to  have  intended  what 
they  have  said." — Marshall,  C.-J.,  in  Gibbons  v.  Ogden,  9  Wheat.,  I. 


142    THE  UNWRITTEN  CONSTITUTION. 

State  constitutions  may  prohibit  to  the  States  the 
exercise  of  a  power  which  is  reserved  to  them  under 
the  Federal  Constitution,  and  in  that  case  the  power 
would  be  reserved  to  the  people.  What  powers 
"  are  reserved  to  the  States  respectively,  or  to  the 
people"?  The  answer  is,  those  powers  which  are 
"  not  (neither)  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States." 
These  two  clauses,  which  contain  the  exceptions  to 
the  operation  of  the  amendment,  are  not  in  the 
alternative.  In  order  that  it  may  be  claimed  under 
this  amendment  that  a  power  is  "  reserved  to  the 
States  respectively  or  to  the  people,"  it  must  avoid 
both  exceptions,  />.,  it  must  be  a  power,  which  is 
neither  delegated  to  the  United  States  nor  pro- 
hibited to  the  States.  It  cannot  be  successfully 
claimed  that  a  power  is  reserved,  which  is  pro- 
hibited to  the  States,  but  which  is  not  delegated  to 
the  United  States.  The  conclusion,  therefore,  is 
that  the  United  States  Government  is  one  of 
enumerated  powers,  so  far  that  it  cannot  exercise 
any  power  which  is  not  prohibited  by  the  Constitu- 
tion to  the  States,  unless  it  is  expressly  or  impliedly 
delegated  to  the  United  States.  But  those  powers, 
which  are  prohibited  to  the  States,  and  which  fall 
legitimately  within  the  scope  of  governmental 
authority,  may  be  exercised  by  the  United  States, 
unless  they  are  also  prohibited  to  the  United  States. 


UNITED  STATES  GOVERNMENT.      143 

There  need  not   be   any  express  or  implied   grant 
of  such  powers  to  the  United  States. 

It  is  not  claimed  or  implied  that  the  interpreta- 
tion of  the  tenth  amendment  here  advocated  con- 
forms more  nearly  to  the  intentions  of  the  framers 
of  the  Constitution  than  that  which  has  been  gen- 
erally accepted  by  writers  upon  the  constitutional 
law  of  the  country.  Indeed,  the  revelation  of  the 
presence  in  the  early  history  of  the  United  States,  of 
forces  of  disintegration  in  the  politics  of  the  coun- 
try, equal  or  almost  equal  to  the  forces  of  consolida- 
tion, would  incline  one  to  suppose  that  the  inten- 
tions of  the  law-makers  in  the  formation  of  the 
Constitution  were  properly  reflected  in  that  con- 
struction of  constitutional  limitations  which  would 
most  effectively  hamper  and  curtail  the  powers  of 
the  national  government.  The  great  struggle  of  the 
wise  men  of  those  days  was  to  secure  for  the  Fed- 
eral Government  the  delegation  of  sufficient  power 
to  establish  an  independent  government ;  and  it 
may  be  said  with  equal  truth  and  force  that  the 
Federal  Constitution  was  wrested  from  an  unwilling 
people.  It  would  therefore  be  impossible  to  show 
that  this  construction  of  the  tenth  amendment  was 
in  conformity  with  the  intentions  and/ expectations 
of  those  whose  votes  enacted  it.  -It  is  freely  ad- 
mitted that  the  prevailing  interpretation  is  without 
doubt  what  the  framers  of  the  amendment  intended. 


i44    THE  UNWRITTEN  CONSTITUTION. 

But  the  intentions  of  our  ancestors  cannot  be  per- 
mitted to  control  the  present  activity  of  the  govern- 
ment, where  they  have  not  been  embodied  in  the 
habits  of  thought  of  the  people — we  have  seen  that 
the  interpretation  has  been  practically  ignored  in 
the  two  illustrative  cases — or  in  the  written  word  of 
the  Constitution.  Where  the  written  word  is  equally 
susceptible  of  two  constructions,  one  of  which  re- 
flects more  accurately  the  intentions  of  the  power 
that  speaks  through  the  word,  that  construction 
must  prevail.  Now  the  living  power,  whose  will  is 
given  expression  in  the  written  word,  is  not  the  men 
who  framed  or  voted  for  the  written  word,  but  the 
present  possessors  of  political  power.  The  present 
popular  will  must  indicate  which  shade  of  meaning 
must  be  given  to  the  written  word.  And  that  inter- 
pretation becomes  the  only  possible  one,  when  it 
may  be  shown  by  the  experience  of  a  century,  that 
the  alternative  construction,  which  reflects  the  in- 
tentions of  the  original  enactors  of  the  written 
word,  is  pernicious  to  the  stability  of  the  govern- 
ment, and  in  violation  of  the  soundest  principles  of 
political  science. 


CHAPTER  XI. 

CARDINAL    RULE    OF    INTERPRETATION    AND    CON- 
STRUCTION  OF  WRITTEN    CONSTITUTIONS. 

' 

IT  is  a  noteworthy  fact,  that  in  the  earlier  stages 
of  development  of  a  system  of  jurisprudence,  when 
the  knowledge  of  the  meaning  of  words  is  crudest 
and  least  certain,  greater  stress  is  laid  in  interpreta- 
tion upon  the  letter  of  the  law  than  in  the  more 
advanced  judicial  age.  The  written  word  is  held  in 
reverential  awe,  and  is  treated  as  containing  every 
element  of  the  law.1  This  tendency,  in  the  inquiry 
into  the  operation  and  meaning  of  writings,  to  con- 
fine one's  attention  to  the  written  word,  is  without 
doubt  caused  by  a  popular  ignorance  of  the  real 

1  "  A  close  adherence  to  the  letter  is  a  mark  of  unripeness  every- 
where, and  especially  so  in  law.  The  history  of  law  might  write 
over  its  first  chapter,  as  a  motto,  '  In  the  beginning  was  the  word.' 
To  all  rude  peoples  the  word  appears  something  mysterious,  whether 
it  be  written  or  solemnly  uttered  as  a  formula,  and  their  simple  faith 
fills  it  with  supernatural  power."  v.  Ihering,  "  Geist  des  R.  Rechts," 
Bd.  II.,  Theil  2,  p.  441.  In  the  subsequent  pages  Prof.  v.  Ihering 
undertakes  an  elaborate  explanation  of  the  metaphysical  origin  of  the 
two  kinds  of  interpretation,  which  is  not  only  attractive  for  its  beauty, 
but  also  for  its  value  to  the  jurist. 
10  145 


146    THE  UNWRITTEN  CONSTITUTION. 

character  of  words  as  "  vehicles  of  thought."  The 
object  of  all  communications  is  to  enable  one  mind 
to  learn  the  thoughts  of  the  other;  and  the  popular 
notion  is  that  the  spoken  or  written  word  is  literally 
the  "  vehicle  of  thought  " ;  that  the  thought  is  actu- 
ally conveyed  by  the  word  from  one  mind  to  an- 
other. Of  course  this  is  altogether  false.  Thought 
is  a  mental  operation,  and  the  intended  effect  of 
words  is  to  reproduce  the  same  operation  in  the 
brain  of  another.  But  the  word  does  not  impart  or 
transmit  the  movement  from  one  brain  to  the 
other.  It  is  also  true  that  words  are  not  the 
only  means  of  communication  of  thought.  Smiles, 
frowns,  nods  of  the  head,  winks,  and  all  kinds  of 
gesturing,  serve  to  communicate  thought  often  as 
well  as  words ;  and  where  the  words  are  accom- 
panied by  such  gestures,  their  meaning  is  often 
materially  modified,  and  sometimes  completely 
changed.  To  take  note  under  such  circumstances 
simply  of  the  spoken  word  would  give  to  the  mind 
of  the  hearer  a  very  wrong  impression  of  the  thought 
of  the  speaker,  and  hence  the  actual  thought  would 
not  have  been  communicated.  In  other  words,  the 
movements  in  the  brain  of  the  writer  or  speaker 
would  not  be  accurately  reproduced  in  the  brain 
of  the  reader  or  hearer.  Words,  therefore,  when 
considered  separate  from  surrounding  circumstances, 
do  not  always  act  as  reliable  vehicles  of  thought. 


RULE  OF  INTERPRETATION.          147 

To  secure  at  all  times  a  correct  appreciation  of 
the  meaning  of  the  writer  or  speaker,  one  must 
take  into  consideration  every  fact,  external  and 
internal,  which  exerted  an  influence  upon  him  at  the 
time  of  writing  or  speaking — his  characteristics  as 
well  as  his  environment, — for  a  word  used  by  one 
man  does  not  necessarily  have  the  same  shade  of 
meaning  which  it  might  have  when  used  by  another. 
But  every  word  must  be  understood  roughly  to  have 
a  certain  and  common  meaning ;  else  it  would  be 
impossible  for  one  mind  to  communicate  with 
another.  But  within  the  limits  of  the  general  mean- 
ing of  a  word,  there  may  be,  and  usually  are,  various 
shades  of  meaning,  which  the  word  alone  cannot  un- 
fold, and  which  must  be  learned  from  other  sources. 
Now  the  literal  or  grammatical  interpretation  can 
only  disclose  this  rough  general  meaning ;  while  the 
finer  shades  of  meaning  are  only  brought  out  by  a 
liberal  or  logical  interpretation,  i.e.,  by  a  considera- 
tion of  every  fact,  having  more  or  less  connection 
with,  and  influence  over,  the  writer.  It  is  needless 
to  add  that  the  latter  interpretation  is  alone  relied 
upon  by  educated  peoples. 

Applying  these  fundamental  principles  to  the 
interpretation  of  constitutional  and  statutory  law,  it 
may  be  stated  that  in  the  pursuit  of  the  meaning  of 
the  law,  every  fact  or  circumstance,  surrounding  the 
lawgiver,  when  the  law  was  promulgated,  is  required 


148    THE   UNWRITTEN  CONSTITUTION. 

by  our  rules  of  interpretation  to  be  inquired  into; 
so  that  the  cardinal  rule  of  interpretation  of  laws 
may  be  said  to  be,  that  the  intention  of  the  law- 
giver, when  the  law  was  enacted,  must  prevail.  The 
same  rule  of  interpretation  is  made  to  apply  to 
statutes  and  constitutions,  as  is  applied  to  private 
contracts. 

In  recognition  of  the  soundness  of  this  rule,  as  ex- 
plained by  our  books  upon  constitutional  and  statu- 
tory construction,  we  expect  a  law  to  be  enforced 
in  the  sense  in  which  the  legislators  intended, 
whether  the  legislators  be  members  of  a  constitu- 
tional convention  or  of  an  ordinary  legislature  ;  and 
the  student  is  directed,  in  his  effort  to  ascertain  the 
meaning  of  a  statute  or  clause  of  a  constitution,  to 
read  the  history  of  the  times,  the  journal  of  the 
convention  or  legislature,  and  the  speeches  of  its 
members.  From  these  extraneous  sources  one  ex- 
pects to  learn  every  thing  necessary  to  an  under- 
standing of  the  exact  meaning  of  the  lawgiver. 

But  would  a  strict  observance  of  this  rule  enable 
a  student  to  get  an  accurate  knowledge  of  what  the 
law  is  now?  If  the  illustrations  heretofore  given  in 
support  of  my  thesis  teach  any  one  thing  with  pre- 
cision, it  is  that  the  intention  of  the  legislator, 
whether  he  be  Congressman  or  a  member  of  a  con- 
stitutional convention,  is  only  effectuated,  so  far  as  it 
has  found  lodgment  in  the  written  word.  The  writ- 


RULE  OF  INTERPRETATION.          149 

ten  word  stands  alone  as  the  embodiment  of  his  in- 
tention ;  and  if  it  is  possible  for  the  court,  in  the 
enforcement  of  the  law,  to  find  in  the  written  word 
two  or  more  shades  of  meaning,  it  does  not  enforce 
that  shade  of  meaning  which  was  intended  by  the 
lawgiver,  but  that  shade  which  best  reflects  the 
prevalent  sense  of  right.  And,  in  securing  that  con- 
cordance of  the  written  law  and  the  prevalent  sense 
of  right,  all  these  rules  of  interpretation  as  generally 
understood  are  thrown  to  the  winds.1  Even  the 
ordinary  and  plain  meanings  are  twisted  out  of  the 
words ;  and,  although  public  opinion  usually  com- 
mands an  adherence  to  the  word,  if  the  case  should 
be  distressing,  and  the  necessity  for  a  repudiation  of 
the  written  word  be  great,  in  obedience  to  popular 
demands,  it  is  done  by  governmental  authority. 
Still,  as  explained  in  the  first  chapter,  the  cases  are 
rare  in  which  a  court  safely  disregards  the  written 
word  of  the  legislature,  for  the  prevalent  sense  of 

1  "  No  statute  ever  resisted,  in  the  end,  the  unfavorable  opinion  of 
the  profession.  Whether  he  intends  it  or  not,  the  judge's  hand  grows 
weak,  the  arm  of  justice  loses  its  power,  acute  interpretation  lends  all 
its  means  to  evade  and  undermine  such  a  statute,  to  introduce  condi- 
tions not  found  in  the  text  or  to  contract  its  language,  and,  as  it  were, 
by  a  silent  conspiracy,  to  invent  and  recommend  the  most  forced 
constructions,  till  even  the  rules  of  logic  bend  to  the  claims  of  inter- 
est. This  silent  war  of  the  profession  against  the  positive  law  is  re- 
peated wherever  that  law  becomes  out  of  date  without  being  formally 
repealed.  It  is  in  this  manner  that  our  instincts  of  right  naturally 
react  against  the  legislator's  disregard  of  them." — Lieber's  "  Herme- 
neutics,"  Appendix,  by  Dr.  Hammond,  pp.  272,  273. 


150    THE  UNWRITTEN  CONSTITUTION. 

right  usually  requires  a  strict  observance  of  the 
written  word,  however  much  violence  is  done  by 
interpretation  to  the  plain  intention  of  the  legislator. 
Is  it  a  sufficient  explanation  of  the  common  disre- 
gard of  legislative  intention  to  say  that  it  is  due  to 
the  influence  of  the  imperfections  of  human  nature 
on  the  administration  of  the  law  ?  To  my  mind  the 
fault  lies  in  the  cardinal  rule  of  interpretation,  as 
given  by  all  our  writers.  It  is  true  that  a  true  inter- 
pretation of  the  law  must  disclose  the  real  and  full 
meaning  of  the  lawgiver  ;  but  in  countries  in  which 
popular  governments  are  established  the  real  law- 
giver is  not  the  man  or  body  of  men  which  first 
enacted  the  law  ages  ago  ;  it  is  the  people  of  the 
present  day  who  possess  the  political  power,  and 
whose  commands  give  life  to  what  otherwise  is  a  dead 
letter.  No  people  are  ruled  by  dead  men,  or  by  the 
utterances  of  dead  men.  Those  utterances  are  only 
law  so  far  as  they  are  voiced  by  some  living  power. 
Hence,  since  under  a  popular  government  govern- 
mental authority  rests  upon  the  voice  of  the  people, 
or  the  voice  of  that  part  of  the  people  which  moulds 
public  opinion,  that  interpretation,  in  strict  con- 
formity with  the  fundamental  rule  of  interpretation, 
must  prevail  which  best  reflects  the  prevalent  sense 
of  right.  For  the  present  possessors  of  political 
power,  and  not  their  predecessors,  are  the  lawgivers 
for  the  present  generation.  While,  therefore,  as  a 


RULE  OF  INTERPRETA  TION.          151 

general  rule,  the  written  word  remains  unchanged 
and  confines  the  operations  of  the  popular  will  to  a 
choice  of  the  shades  of  meaning,  of  which  the  written 
word  is  capable — until  the  written  word  has  been 
repealed  or  modified  by  the  proper  authority, — the 
practical  operation  of  the  law  will  vary  with  each 
change  in  the  prevalent  sense  of  right ;  and  the  judge 
or  practitioner  of  the  law,  who  would  interpret  the 
law  rightly,  i.e.,  ascertain  with  precision  the  rule  of 
conduct  in  any  case,  need  not  concern  himself  so 
much  with  the  intentions  of  the  framers  of  the  Con- 
stitution or  statute,  as  with  the  modifications  of  the 
written  word  by  the  influence  of  the  present  will  of 
the  people.  Or,  in  other  words,  he  must  find  out 
what  the  possessors  of  political  power  now  mean  by 
the  written  word. 

This  is  not  a  philosophical  speculation,  having  no 
foundation  in  fact.  Notwithstanding  its  apparently 
radical  contradiction  of  the  commonly  accepted  rules 
of  interpretation,  it  is  acted  upon  and  recognized  by 
all  the  leading  American  authorities.  Dr.  Lieber  re- 
cognizes this  factor — unconsciously,  it  is  true, — when, 
in  distinguishing  between  the  interpretation  and  con- 
struction of  constitutional  provisions,  he  says  that  a 
constitutional  "  sentence,  then,  must  be  interpreted, 
if  we  are  desirous  to  ascertain  what  precise  meaning 
the  framers  of  our  Constitution  attached  to  it,  and 
construed,  if  we  are  desirous  of  knowing  how  they 


152    THE  UNWRITTEN  CONSTITUTION. 

would  have  understood  it  respecting  new  relations, 
which  they  could  not  have  known  at  the  time,  and 
which,  nevertheless,  fall  decidedly  within  the  province 
of  this  provision."  '  And  the  same  may  be  said  of 
Chief-Justice  Marshall,  where,  in  his  opinion  in  the 
Dartmouth  College  case,  he  claims  that  a  case  may 
come  within  the  operation  of  a  constitutional  pro- 
vision, even  though  the  framers  of  the  Constitution 
did  not  anticipate  it,  provided  there  is  nothing  in  the 
written  word  to  indicate  that  they  would  have  ex- 
cluded it  if  it  had  been  anticipated.3 

If  a  law  or  constitutional  provision  can  by  con- 
struction be  made  to  cover  a  case,  which  the  enacter 

1  "  Hermeneutics,"  p.  168. 

2  "  It  is  more  than  possible  that  the  preservation  of  rights  of  this 
description  was  not  particularly  in  the  view  of  the  framers  of  the 
Constitution,   when    the   clause   under   consideration   (the  provision 
against  impairment  of  obligation  of  contracts)  was  introduced  into 
that  instrument.     It  is  probable  that  interferences  of  more  frequent 
occurrence,  to  which  the  temptation  was  stronger,  and  of  which  the 
mischief  was  more  extensive,  constituted  the  great  motive  for  impos- 
ing this  restriction  on  the  State  legislatures.     But  although  a  particu- 
lar and  rare  case  may  not,  in  itself,  be  of  sufficient  magnitude  to 
induce  a  rule,  yet  it  may  be  governed  by  the  rule  when  established, 
unless  some  plain  and  strong  reason  for  excluding  it  can  be  given.    It 
is  not  enough  to  say  that  this  particular  case  was  not  in  the  mind  of 
the  convention  when  the  article  was  framed,  nor  of  the  American 
people  when  it  was  adopted.     It  is  necessary  to  go  further  and  to  say 
that  had  this  particular  case  been  suggested  the  language  would  have 
been  so  varied  as  to  exclude  it,  or  it  would  have  been  made  a  special 
exception.     The  case  being  within  the  words  of  the  rule,  must  be 
within  its  operations  likewise,  unless  there  be  something  in  its  literal 
construction  so  obviously  absurd  or  mischievous,  or  repugnant  to  the 
general  spirit  of  the  instrument,  as  to  justify  those  who  expounded  the 
Constitution  in  making  it  an  exception." — 4  Wheat.,  pp.  644,  645. 


R  ULE  OF  INTERPRETA  TION.          153 

of  the  law  or  provision  did  not  and  could  not  antici- 
pate, and  which  he  consequently  cannot  be  said  to 
have  intended  to  include  within  the  operation  of  the 
rule,  then  by  what  will  power  is  the  law  or  constitu- 
tional provision  made  to  apply  to  that  case?  Is  it 
not  the  present  will  of  the  people?  And  is  not, 
then,  in  accordance  with  the  rules  laid  down  by 
Marshall  and  Lieber,  a  law  or  constitutional  rule 
made  to  mean  what  the  popular  will  intends  by  the 
written  word  ?  The  real  character  of  the  rule  cannot 
be  changed  by  giving  it  the  name  of  construction. 
Construction,  as  defined  by  the  authorities  and  dis- 
tinguished from  interpretation,  is  nothing  more  than 
that  logical  interpretation,  whereby  the  real  meaning 
of  the  living  lawgiver,  i.e.,  the  present  possessors  of 
political  power,  is  ascertained. 

This  fallacy  in  interpretation  of  laws  is  the  result 
of  holding  on  to  a  rule,  after  a  change  of  circum- 
stances has  confused  its  meaning  or  made  its  appli- 
cation misleading;  and  its  retention,  after  it  has 
ceased  to  be  true,  is  due  to  the  general  acceptation 
of  the  groundless  doctrine  of  the  social  contract. 
Under  this  doctrine,  as  well  as  under  the  doctrine  of 
the  divine  right  of  kings,  the  popular  conception  of 
law  was,  as  indicated  in  Blackstone's  definition,  that 
it  emanated  from  some  power  above  and  beyond  us, 
from  God  in  the  one  case,  and  from  our  ancestors  in 
the  other  case.  That  being  the  source  of  the  law,  in 


154    THE  UNWRITTEN  CONSTITUTION. 

order  to  ascertain  what  the  law  is,  we  must  discover 
what  the  governmental  representatives  of  God,  or  of 
our  ancestors,  meant  by  the  words  used  in  their 
enactments ;  in  the  same  manner  as  we  endeavor  to 
ascertain  the  intentions  of  parties  to  a  private  con- 
tract, in  order  to  determine  their  contractual  rights. 
But  as  soon  as  we  recognize  the  present  will  of  the 
people  as  the  living  source  of  law,  we  are  obliged,  in 
construing  the  law,  to  follow,  and  give  effect  to,  the 
present  intentions  and  meaning  of  the  people. 


CHAPTER  XII. 

THE   REAL  VALUE  OF  WRITTEN  CONSTITUTIONS. 

/ 
IF  it  be  true,  as  the  .foregoing  pages  indicate,  that 

all  political  constitutions  undergo  a  constant  and 
gradual  evolution,  keeping  pace  with  the  develop- 
ment of  civilization,  whether  there  be  a  written 
constitution  or  not ;  that  these  changes  generally 
take  place  without  formal  amendments  to  the  writ- 
ten constitution,  the  question  would  naturally  arise : 
Of  what  value  then  is  a  written  constitution  which 
demonstrates  its  superiority  over  an  unwritten  con- 
stitution ?  The  student  who  has  been  in  the  habit 
—which  is  still  very  common,  if  not  universal,  with 
practical  lawyers  and  judges — of  beginning  his  in- 
quiry injx^  Constitutional  law  with  the  fundamental 
postulate  that  all  constitutional  rules  have  their  root 
in  the  written  declarations  of  the  sovereign  power, 
and  that  these  declarations  must  be  observed  and 
obeyed  in  the  spirit  and  meaning  with  which  they 
were  first  promulgated, — such  a  student  is  apt,  if  he 
concedes  the  truth  of  the  present  thesis,  to  conclude 
that  the  superiority  of  written  over  purely  unwritten 
constitutions  has  been  dissipated  altogether. 

X55 


156    THE  UNWRITTEN-  CONSTITUTION. 

Not  so.  There  is  still  room  for  the  claim  that  the 
written  constitution  has  in  it  elements  which  funda- 
mentally change  the  character  of  the  government, 
and  which  the  unwritten  constitution  cannot  possi- 
bly claim.  Not  only  this,  but  the  further  claim  may 
be  substantiated  that,  with  a  full  understanding  of 
the  real  value  of  written  constitutions,  and  a  differ- 
entiation of  that  real  value  from  its  supposed  but 
fictitious  value,  the  superiority  of  written  over 
purely  unwritten  constitutions  is  enhanced  rather 
than  diminished. 

In  the  pursuit  of  this  inquiry,  it  is  necessary,  as 
elsewhere,  to  take  cognizance  of  the  existence  and 
effect  of  the  two  opposing  social  forces,  which  are 
present  everywhere  in  bodies-politic,  and  which  were 
prominently  distinguishable  at  the  time  when  the 
present  Federal  Constitution  was  adopted,  viz. :  the 
force  of  consolidation  or  centralization,  and  the 
force  of  disintegration.  In  every  body-politic,  in 
the  effort  to  reconcile  the  claims  of  legal  order  and 
personal  freedom  from  restraint,  there  are  those  who, 
on  the  one  hand,  are  willing  to  sacrifice  personal  lib- 
erty to  the  cause  of  law  and  order,  only  as  far  as  this 
sacrifice  is  absolutely  necessary  to  the  public  safety  ; 
while,  on  the  other  hand,  there  are  those  who  place 
so  high  a  value  upon  law  and  order,  that  they  are 
willing  and  are  clamorous  for  the  sacrifice  of  personal 
liberty,  whenever  that  sacrifice  promotes  the  public 


WRITTEN  CONSTITUTIONS.  157 

welfare.  The  first  class  of  political  units  translate 
the  Latin  maxim,  salus  populi  suprema  lex,  the  safety 
of  the  people  is  the  highest  law ;  while  the  second 
class  understand  by  that  maxim  that  the  welfare  of 
the  people  is  the  highest  law.  The  first  class  are 
therefore  always  afraid  of  the  tyranny  of  officials ; 
while  the  second  class  dread  the  power  of  the  demos. 
The  first  class  are  anxious  to  impose  restraints  upon 
the  power  of  the  officials  ;  while  the  second  class  are 
anxious  to  dimmish  as  far  as  possible  the  influence  of 
the  people  on  legislation.  The  first  class  are  thor- 
oughly democratic  in  spirit ;  the  second  class,  thor- 
oughly aristocratic. 

It  is  needless  to  state  that  both  of  these  political 
classes  were  present  in  full  force  during  the  first 
years  of  our  national  existence.  In  the  sense  in 
which  the  terms  have  here  been  explained,  George 
Washington,  Alexander  Hamilton,  James  Madison, 
John  Randolph,  and  others,  who  took  the  same  view 
of  politics,  were  Aristocrats ;  while  Samuel  Adams, 
George  Clinton,  Thomas  Jefferson,  Patrick  Henry, 
etc.,  were  Democrats.  The  Aristocrats,  dreading  the 
absolutism  of  a  democratic  majority,  sought  to 
establish  a  government,  which,  although  representa- 
tive and  popular  in  character,  could  be  conducted 
and  controlled  by  the  better  elements  of  society, 
and  whose  actual  administration  would  be  as  free  as 
possible  from  the  influence  of  the  masses.  Hence, 


158    THE  UNWRITTEN  CONSTITUTION. 

in  the  constitutional  convention,  they  proposed  the 
establishment  of  a  strong  national  government,  with 
such  checks  and  safeguards  thrown  around  the 
exercise  of  the  power  of  amendment,  as  to  give 
permanency  to  the  form  and  character  of  the  govern- 
ment, and  to  prevent  radical  changes  in  response  to 
every  popular  clamor.  The  Democrats  were,  on  the 
other  hand,  in  constant  fear  of  the  establishment 
in  this  country  of  another  George  III.,  under  the 
guise  of  a  popular  executive.  They  fought  for  their 
liberties  step  by  step,  the  result  of  the  contest  being 
that  the  Federal  Constitution  became  a  collection  of 
compromises.  But,  in  order  that  the  opposing  ele- 
ment may  not  easily  or  inadvertently  secure  any 
increase  of  power  for  the  Federal  Government,  the 
Democrats  were  likewise  anxious  to  impose  restraints 
upon  the  power  of  amendment.  Both  parties  then 
concurred  in  the  same  conclusion,  proceeding  from 
opposite  standpoints,  and  resting  the  conclusions 
upon  different  reasons. 

But  in  their  desire  to  impose  restraints  upon  the 
exercise  of  official  and  popular  power,  respectively, 
they  did  not  stop  with  making  it  difficult  to  amend 
the  Constitution.  Legislation  was  also  made  difficult 
by  dividing  the  legislative  power  between  three  dif- 
ferent independent  bodies  or  departments  of  the  gov- 
ernment, the  President,  the  Senate,  and  the  House 
of  Representatives,  and  requiring  the  concurrence  of 


WRITTEN  CONSTITUTIONS.  159 

all,  in  order  to  make  new  laws,  or  to  change  existing 
ones, — except  that  the  two  houses  of  Congress  were 
permitted,  by  a  two-thirds  vote  in  each  house,  to 
pass  a  law  over  the  veto  of  the  President. 

The  further  provision  is  made,  in  the  procurement 
of  the  same  ends,  that  the  President,  the  members 
of  the  Senate,  and  of  the  House  of  Representatives, 
shall  not  all  be  elected  at  the  same  time.  Taken  as 
a  whole,  it  was  the  most  ingenious  device  for  the  pre- 
vention of  legislation  that  the  world  has  ever  known ; 
and  after  the  adoption  of  the  Constitution,  both  par- 
ties, from  their  respective  standpoints,  extolled  these 
features  of  the  Constitution,  perhaps  beyond  their 
true  value,  losing  sight  of  the  great  loss  which  en- 
•sues  from  unwise  legislation,  because  of  the  supreme 
difficulty  to  secure  its  repeal  or  modification.1 

But  all  these  checks  and  balances,  set  down  in  a 
written  constitution,  would  be  unavailing,  if  the 

1  John  Adams  has  enumerated  these  checks  and  balances  as  fol- 
lows :  "First,  the  States  are  balanced  against  the  general  government. 
Second,  the  House  of  Representatives  is  balanced  against  the  Senate, 
and  the  Senate  against  the  House.  Third,  the  executive  authority  is 
in  some  degree  balanced  against  the  legislature.  Fourth,  the  judici- 
ary is  balanced  against  the  legislature,  the  executive,  and  the  State 
governments.  Fifth,  the  Senate  is  balanced  against  the  President  in 
all  appointments  to  office,  and  in  all  treaties.  Sixth,  the  people  hold 
in  their  own  hands  the  balance  agajnst  their  own  representatives  by 
periodical  elections.  Seventh,  the  legislatures  of  the  several  States 
are  balanced  against  the  Senate  by  sexennial  elections.  Eighth,  the 
electors  are  balanced  against  the  people  in  their  choice  of  President 
and  Vice-President."— Letter  of  John  Adams  to  John  Taylor, 
"Works,"  vi.,  467. 


160    THE  UNWRITTEN  CONSTITUTION. 

means  of  securing  their  observance  were  not  likewise 
provided  in  the  exalted  and  extraordinary  power  of 
the  courts  to  declare  when  a  law,  passed  by  Congress, 
or  an  act,  committed  by  an  official,  is  in  contradic- 
tion of  some  provision  of  the  Constitution.  There 
is  no  express  grant  to  the  courts  of  such  a  power ;  it 
is  simply  deduced  from  the  necessity  of  determining 
when  there  is  a  conflict  which  law  they  must  apply 
to  the  cause  of  action,  the  law  of  Congress  or  the 
rule  of  the  Constitution.  Hence  the  courts  have  no 
authority  to  pass  upon  the  constitutionality  of  legis- 
lation, except  when  the  settlement  of  this  question 
is  necessary  in  deciding  the  issue  of  a  bona-fide  cause 
of  action,  brought  before  the  court  by  bona-fide  liti- 
gants. But  whenever  it  becomes  in  this  way  neces- 
sary to  pass  upon  the  constitutionality  of  national 
and  State  legislation,  the  decision  of  the  court  is 
binding  upon  all  the  parties  to  the  suit,  and  upon  all 
others  whose  rights  are  in  any  way  affected  by  the 
judgment  of  the  court. 

The  same  dread  of  the  possession  of  absolute 
power  by  any  department  of  the  government  is  to  be 
observed  in  the  limitations  of  this  extraordinary 
judicial  power.  The  Supreme  Court  of  the  United 
States  is  not  placed  by  the  Constitution  above  the 
other  departments  of  the  government,  with  the 
power  to  prohibit  any  unconstitutional  exercise  of 
power  by  them.  Not  at  all.  This  power  to  pass 


WRITTEN  CONSTITUTIONS.  161 

upon  the  constitutionality  of  a  law  or  official  act  is 
only  acquired  by  the  court  as  an  incident  of  its  duty 
to  enforce  the  law  between  parties  litigant.  The 
judgment  of  the  United  States  Supreme  Court  on 
a  constitutional  question  is  not  binding  upon  the 
President  or  upon  Congress.  Each  department  is 
required  to  obey  the  Constitution,  according  to 
the  light  in  which  the  question  under  discussion  is 
viewed  by  it.  Andrew  Jackson  vetoed  the  bill  pro- 
viding for  the  maintenance  of  a  system  of  banks  by 
the  Federal  Government,  on  the  ground  that  the  bill 
was  unconstitutional,  although  the  Supreme  Court 
had  pronounced  a  similar  bill  to  be  within  the  con- 
stitutional power  of  Congress.  Furthermore,  Mr. 
Jefferson  refused  to  obey  the  order  of  the  court  in 
Marbury  v.  Madison  (i  Cranch,  137'),  while  Mr. 
Lincoln  ignored  the  opinion  of  Chief-Justice  Taney,* 
that  the  presidential  proclamation  of  the  suspension 
of  the  writ  of  habeas  corpus  was  an  unconstitutional 
exercise  of  authority.  This  is  not  all.  The  Supreme 
Court  is  still  further  shorn  of  its  power  by  giving 

1  In  this  case,  Mr.  Madison,  as  Secretary  of  State  under  President 
Jefferson,  had  refused  to  issue  the  commission  of  one  Marbury,  who 
had  been  appointed  to  a  judicial  position  by  President  Adams  on  the 
last  day  of  his  term  of  office,  but  who  had  not  received  his  commis- 
sion of  the  retiring  President.  The  Supreme  Court  undertook  to 
compel  the  new  Secretary  of  State  to  issue  the  commission,  but  the 
mandamus  was  ignored  by  the  President  and  his  Secretary. 

6  In  Ex  parte  Merryman,  Taney's  Circuit  Decisions,  Campbell's 
Rep.,  246. 
II 


162    THE  UNWRITTEN  CONSTITUTION. 

to  Congress  the  power  to  increase  the  number  of 
the  Supreme  Court  judges,  and  thus,  with  the  aid  of 
the  President,  to  change  the  composition  and  ten- 
dencies of  the  court.  If  at  any  time  the  Supreme 
Court  should  too  persistently  withstand  any  popular 
demand  in  a  case  in  which  the  people  will  not  sub- 
mit to  the  judicial  negative,  by  an  increase  in  the 
number  of  the  judges  and  the  appointment  to  the 
newly  created  judgeships  of  men  who  will  do  the 
people's  bidding,  the  popular  will  may  be  realized. 

I  do  not  think  there  can  be  much  doubt  that  the 
danger  of  official  tyranny  has  been  successfully  dis- 
sipated in  the  American  constitutional  system, — 
except  so  far  as  such  tyranny  may  be  demanded  by 
a  popular  majority, — by  the  frequency  of  the  elec- 
tions and  the  short  terms  of  service.  Officials  of  all 
classes  are  too  anxious  to  secure  popular  approval  to 
make  the  administration  of  their  offices  a  popular 
menace.  They  have  their  fingers  constantly  upon 
the  public  pulse,  and  every  expression  of  popular 
approval  and  disapproval  is  noted.  Indeed,  the 
direct  and  constant  responsibility  of  almost  all  classes 
of  officials  to  public  opinion,  through  frequent  popu- 
lar elections,  goes  very  far  towards  nullifying  any 
superior  merit  which  the  written  constitution  pos- 
sesses over  an  unwritten  constitution.  For  these 
officials,  instead  of  attempting  to  throttle  the  popu- 
lar will,  are  too  ready  to  obey  every  popular  caprice, 


WRITTEN  CONSTITUTIONS.  163 

it  matters  not  how  grievously  the  written  Constitu- 
tion may  be  thereby  violated.  And  were  the  judges 
of  the  federal  bench  elected  for  short  terms  of  ser- 
vice, and  by  popular  election,  as  is  the  case  in  many 
of  the  States  with  respect  to  the  State  judiciary,  the 
written  Constitution  would  serve  very  little  purpose. 
It  is  not  needed  for  the  protection  of  the  people 
against  the  tyranny  of  the  officials ;  its  only  value  is 
to  serve  as  a  check  upon  the  popular  will  in  the 
interest  of  the  minority.  By  making  the  federal 
judiciary  hold  office  during  good  behavior,  and  by 
providing  in  the  Constitution  for  one  Supreme  Court, 
which  cannot  be  abolished  by  congressional  action, 
the  means  have  been  provided,  in  ordinary  times  of 
peace,  of  protecting  the  minority  against  the  abso- 
lutism of  a  democratic  majority.  It  enables  a  small 
body  of  distinguished  men,  whose  life-long  career 
is  calculated  to  produce  in  them  an  exalted  love 
of  justice  and  an  intelligent  appreciation  of  the 
conflicting  rights  of  individuals,  and  the  life-tenure 
of  whose  offices  serves  to  withdraw  them  from  all 
fear  of  popular  disapproval ;  it  enables  these  inde- 
pendent, right-minded  men,  in  accordance  with  the 
highest  law,  to  plant  themselves  upon  the  provisions 
of  the  written  Constitution,  and  deny  to  popular 
legislation  the  binding  force  of  law,  whenever  such 
legislation  infringes  a  constitutional  provision.  This 
is  the  real  value  of  the  written  Constitution.  It 


164    THE  UNWRITTEN  CONSTITUTION. 

legalizes,  and  therefore  makes  possible  and  success- 
ful, the  opposition  to  the  popular  will. 

But  this  opposition,  when  most  successful,  does 
not  serve  as  a  complete  barrier  to  the  popular  will. 
Not  only  do  the  judges  themselves  fall  under  the 
influence  of  the  prevalent  sense  of  right,  and  ordi- 
narily give  in  their  decisions  an  accurate  expression 
of  it,  but  the  various  checks  upon  this  veto  power 
of  the  courts  also  serve  to  make  their  action  only 
a  dilatory  proceeding ;  or,  to  adopt  the  happy 
expression  of  James  Russell  Lowell,1  this  over- 
ruling power  of  the  Supreme  Court  of  the  United 
States  is  but  an  obstacle  "  in  the  way  of  the 
people's  whim,  not  of  their  will."  But  with  this 
limitation,  extensive  as  it  is,  the  written  Constitution 
serves  a  most  beneficent  purpose.  If  one  professes 
any  faith  at  all  in  popular  government,  he  must 
confess  to  a  desire  that  the  popular  will  shall  prevail, 
and  that  the  danger  to  the  commonwealth  lies  not 
in  the  people's  will  but  in  their  whims  and  ill-con- 
sidered wishes.  And  even  if  the  student  does  not 
have  any  faith  in  popular  government,  he  must 
admit  that,  with  an  enlightened  and  spirited  peo- 
ple, who  know  their  strength,  and  who  know  that 
the  living  power  in  all  municipal  law  proceeds  from 
them,  it  is  an  absolute  impossibility  to  suppress  the 
popular  will.  Happy  is  that  country  whose  consti- 

1  "Democracy,  and  Other  Addresses"  (1887),  p.  24. 


WRITTEN  CONSTITUTIONS.  165 

tutional  system  enables  it  to  enjoy  the  blessings  of 
popular  government,  while  at  the  same  time  it  is 
protected  from  the  evils  of  hasty  and  passionate 
legislation.  And  while,  perhaps,  the  constitutional 
system  of  this  country  has  not  developed  exactly  in 
accordance  with  the  wishes  and  expectations  of 
Washington,  Hamilton,  Madison,  and  their  co-work- 
ers, yet  if  it  were  possible  for  them  to  know  the 
results  actually  achieved,  they  would  be  satisfied 
with  the  knowledge  that  they  had  in  a  measure 
succeeded  in  establishing,  what  exists  nowhere  else,  a 
popular  government  without  democratic  absolutism. 

THE  END. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

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